Statutory Authorization for Types of Bond
State law provides for various types of pretrial release or what is generally known as bond. Bond is legally defined as a written promise, and a bail bond has been defined as a promise between the defendant and the court, or between the defendant, a surety and the court.
Bonds can be unsecured and consist of only a promise to appear in court as ordered. Bonds can also include other conditions of release beyond appearance, including secured and unsecured financial conditions and other nonfinancial conditions such as supervision by a pretrial services agency. Types of bond in state statute generally include 1) release on recognizance or personal recognizance bonds, 2) conditional release, 3) unsecured appearance bonds and 4) secured bonds. See the graphic below for additional information on types of bond.
Recognizance/Personal Recognizance
Authorized in nearly every state and known as “PR bonds” or “ROR,” these bonds are an agreement signed by the defendant promising to appear in court as required. Recognizance bonds can be issued by release authorities after arrest or by law enforcement in the form of citation in lieu of arrest, which is authorized in every state for at least some offenses.
Conditional release
Authorized in most states, defendants promise to appear, but a court can impose additional conditions of release, such as supervision by pretrial services or other monitoring.
Unsecured appearance
Authorized in most states, these bond agreements require defendants to promise to appear for all court dates but set a financial penalty that is payable if the defendant fails to appear. No upfront monetary security is required for release.
Secured appearance
Authorized in most states, secured bonds include promises to appear between courts and a defendant with a financial condition imposed on a defendant upfront in order to ensure appearance or public safety. The various types of secured bonds include:
- Surety bonds can be referenced generally in state law or broken down into two categories—commercial surety bonds and uncompensated surety bonds.
- Commercial surety bonds require commercial bail bond companies to sign a promissory note to pay the full amount of the financial condition if the defendant violates conditions. The commercial surety charges the defendant a nonrefundable percentage fee for this service, usually a maximum of 15% of the amount or a specified dollar amount. Commercial sureties are prohibited in Illinois, Kentucky, Massachusetts, Oregon and Wisconsin.
- Uncompensated surety bonds are those in which an organization or individual signs the promissory note to ensure the financial condition without profit. Uncompensated sureties could include family and friends or community bail funds.
- Cash bonds can be broken down into two categories—full cash bonds or deposit bonds. In both instances, defendants post money with the court that is returned to the defendant after adjudication if they don’t violate conditions of release. State law authorizes administrative fees to be deducted from the amount returned in some states.
- A full cash bond requires the defendant to post the entire financial condition set by the court in cash.
- Deposit bonds require a defendant to pay a percentage of the full amount of the financial condition set by the court, often 10%. Some states specifically authorize deposit bonds in statute, but the practice can also be found in states where statutory language is silent and only references cash bonds generally without differentiating between the two types.
- Property bonds, or collateral bonds, require defendants to post property valued at the full amount of the financial condition with the court. Authorized in most states, they can require real property or other collateral such as U.S. savings bonds, state-issued bonds, local government bonds or other kinds of specified personal property.
Statutory Options for Other Conditions of Release
Courts in every state are authorized to impose additional conditions of release as part of the bond, or promise to appear, which they deem necessary to reasonably ensure appearance or public safety. Every state statutorily enumerates at least a handful of specific conditions other than bond that courts can impose on pretrial defendants eligible for release.
Supervision and electronic monitoring are two of the most common conditions authorized by state statute. Partial confinement, including house arrest, work release, curfew and inpatient treatment are options in the majority of states. Additionally, most states authorize courts to restrict movement by limiting travel or presence in specified locations.
A number of conditions focus on victim safety. These include restrictions on where a defendant can reside, including with the victim; limitations on contact with certain people, groups or places; restrictions on the possession of weapons; prohibitions on threats of violence; and adherence to or creation of protection or no-contact orders.
Most states authorize prohibitions on the use of controlled substances and also authorize related monitoring or treatment for substance use disorders. Other kinds of treatment addressed in statute include mental health treatment, domestic violence counseling, and other courses of treatment that are medically recommended.
In addition to the specifically enumerated conditions described, nearly every state authorizes courts to impose any reasonable condition necessary to ensure appearance of the defendant or the safety of the victim or the community. This broad statutory authorization provides a significant amount of discretion for courts to tailor conditions of release to the individual defendant.
