In addition to authorizing types of release and listing options for release conditions, statutes provide guidance to courts on what type of bond and conditions of release will be imposed. Laws address questions of excessiveness, reasonableness, due process and equal protection considerations. Beyond that, virtually every state limits conditions ordered to only those that provide reasonable assurance of court appearance and, in some instances, public safety.
More than half the states have codified a presumption of release on recognizance or non-monetary conditions for some, if not all, defendants who are eligible for bail. In a minority of states with this presumption, it is limited to misdemeanor cases.
Nearly half the states and Washington, D.C., have laws that expressly require courts to impose the least restrictive conditions necessary to ensure the appearance of the defendant and/or public safety.
In a handful of states where this presumption is not codified, courts are required to first consider release on recognizance or unsecured appearance bond. Then, if the court determines that either method is insufficient to ensure appearance or public safety, other statutory release conditions may be considered. The provisions for least restrictive conditions require individualizing the pretrial process but are also an express codification of legal concepts that transcend statutory language in every state.
Individualization of the pretrial release process is constitutionally required. To implement this requirement, states have enacted factors that courts must consider when making release determinations. These factors generally include criminal history, prior failures to appear and ties to the community, among others. For decades, these laws have directed courts to conduct unstructured assessments of risk using professional judgment and experience to evaluate the codified factors intended to help a court predict a defendant’s potential for pretrial success or failure.
Increasingly, state laws are authorizing or requiring courts to consider an empirically based approach, or a structured risk assessment tool. These tools are the result of decades of research aimed at determining which factors have the most predictive value for success on pretrial release. Pretrial success has been defined in statute. For example, Delaware defines it as “a defendant’s compliance with orders to appear in court as directed and not commit any new criminal offense between the initial arrest and adjudication of the pending criminal charges.”
There are about two dozen risk assessment tools in use across the states. Laws in Alaska, Delaware, Hawaii, Indiana, Kentucky, New Jersey and Vermont require courts to adopt or consider risk assessments in at least some, if not all, cases on a statewide basis. Laws in Colorado, Illinois, Montana, New York, Pennsylvania, Rhode Island, Virginia and West Virginia authorize or encourage, but do not require, adopting a risk assessment tool on a statewide basis.
Statutes are starting to regulate the use of risk assessments and promote best practices by requiring the tool to be validated on a regular basis, that the tool be free from racial or gender bias, and that documents, data and records related to the tool, and use of the tool, be publicly available.