Authorization and Use of Financial Conditions
Every state authorizes courts to order release on a cash or other secured bond in at least some instances. This is the case even in jurisdictions such as New Jersey and Washington, D.C., that are widely known for moving away from reliance on financial conditions of release.
In the majority of states, financial conditions of release are available to courts when setting release conditions for most defendants. Recently, states have started to limit the scope of cases and circumstances in which financial conditions can be used.
Illinois is the only state to entirely eliminate financial conditions of release with implementation of the new law slated to take effect Jan. 1, 2023. This includes secured financial conditions that required defendants to post money with the court and unsecured financial conditions, where no money was required to be posted with the court, but a dollar amount was set in the bond.
A couple states have enacted laws limiting, but not eliminating, financial conditions of release. New York has the broadest law restricting financial conditions of release, prohibiting their use for most misdemeanor and nonviolent felony cases. Colorado prohibits the use of financial conditions of release in most traffic and petty cases unless payment would result in a timelier release of the person.
Other laws aim to limit the impact of financial conditions of release. Texas statute contains a presumption of inability to pay in certain cases, if a person cannot make bond after 48 hours. A law in New Hampshire prohibits courts from imposing a financial condition that would result in detention solely because of inability to pay. Defendants in Colorado must be released if they can meet the terms of a bond, even if they are unable to pay outstanding fees or costs such as pretrial supervision, electronic monitoring, processing or booking fees.
Use of Financial Conditions in Practice
There are examples of jurisdictions that statutorily authorize, but largely do not utilize, financial conditions of release. For example, New Jersey made a number of substantial changes in 2017. The reforms created a statewide pretrial services agency, implemented a risk assessment tool, required release on the least restrictive conditions and put in place procedural protections and statutory timelines for newly authorized preventative detention. Following implementation, New Jersey reported significant decreases in people detained pretrial and a 20% decrease in jail populations. Nearly all people were released, most without financial conditions. Only 5.6% of defendants were detained and financial conditions were used in just 44 instances.
Statutory Guidance for Courts Imposing Financial Conditions of Release
Recently, states have codified statutory guidance to courts specific to financial conditions of release. Much of this legislation has been in response to increased attention to people being held pretrial, due mostly to inability to pay financial conditions of release or fees associated with conditions of release such as electronic monitoring.
These statutes require courts to consider a defendant’s ability to meet financial conditions of release or financial circumstances. Laws related to consideration of a defendant’s financial resources or ability to pay are detailed below.