Authorization and Use of Financial Conditions
Nearly 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 Sept. 18, 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 other 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. A new 2023 Mississippi law provides that courts shall not set financial conditions of bail solely for the purpose of detaining a defendant.
Other states have funded research to evaluate pretrial systems and the use of financial conditions. A new Minnesota law instructs the Minnesota Justice Research Center to study and report on pretrial practices, including specifically on the use of bail as a condition of pretrial release. A Vermont law instructs the state sentencing commission to identify the conditions that would be required to move toward the elimination of the use of financial conditions of release and make a recommendation as to whether money bail should be eliminated in the state.
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. Across the same period, the state had a drop in overall crime and violent crime.
Statutory Guidance for Courts Imposing Financial Conditions of Release
Recently, states have codified statutory guidance, requiring courts to specifically consider a defendant’s ability to pay financial conditions of release when setting the amount. Much of this legislation has been in response to increased attention to people being held in pretrial detention, due mostly to inability to pay financial conditions of release or fees associated with conditions of release such as electronic monitoring.
Some of these provisions are more general, requiring courts to consider a defendant’s financial resources and employment status when determining release or conditions of release generally. Other laws are more specific to the process of courts determining an amount of bail or financial conditions of release to be set.
Massachusetts, for example, specifies that bail should be set in an amount no higher than what would reasonably assure the appearance of the person before the court after taking into account the person’s financial resources.
The Massachusetts language is representative of many states by using the term “financial resources.” However, some states are more specific, requiring consideration of a defendant’s ability to pay a bond amount instead of just taking into account their financial resources when setting an amount.
A few states use more detailed language than “financial resources” or “financial ability.” Georgia, for example, requires courts to consider a defendant’s financial obligations including to dependents and any financial resources and assets, including whether they are jointly controlled. New York requires courts to consider a defendant’s ability to post bail without undue hardship and ability to obtain a bond.
Some states also specifically reference making these considerations of ability to pay or financial resources based on information that is available at the time the court is making the determination. What is less clear in statute is what information courts would have available to them to make these determinations.
State laws requiring courts to consider a defendant’s financial condition or circumstances including employment are collected below. At least an additional four states—Idaho, New Hampshire, New Jersey, and South Carolina—have permissive language allowing courts to consider a defendant’s financial resources but do not require consideration.