Pretrial Release Violations & Bail Forfeiture

6/28/2018

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Rebecca Pirius

The majority of defendants charged with a crime are afforded the opportunity to be released prior to trial, provided they agree to return for future court dates and do not commit new crimes. The United States Constitution and almost every state constitution specifies that “[e]xcessive bail shall not be required.”

A defendant may secure pretrial release through cash bail, bail bond, property bond, or in some cases, on the person’s own recognizance. Each state has its own procedures for setting bail and release. A violation of the release terms may result in bail forfeiture or a new criminal offense.

Learn more on this page about the purposes of bail and consequences for pretrial release violations.

Purpose of Bail

States’ objectives on the purpose of bail vary, but common purposes include securing defendant’s appearance at court, preventing new crimes and protecting public safety.

For some states, the only stated purpose of bail is to secure the defendant’s attendance in court. Mississippi’s statute makes this clear: “The purpose of bail is to guarantee appearance and a bail bond shall not be forfeited for any other reason.” Miss. Stat. § 99-5-25.

Other states' statutes reflect a broader purpose. For example, Florida's statute reads: “The purpose of a bail determination in criminal proceedings is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant.” Fla. Stat. § 903.046 (1).

Violating bail--whether by nonappearance or a conditions violation--may result in bail forfeiture, a separate criminal offense, revocation of release, or other sanctions. Commonly, defendants satisfy financial conditions of bail through the services of a bail agent or surety. If a defendant fails to appear at court on time, the bail agent or surety may have to pay the full amount of the bond.

Use the interactive maps in the tabs to learn which states allow bail forfeiture for a conditions violation, criminalize a defendant’s failure to appear, impose strict liability for bail jumping crimes, and more.

Forfeiture

Every state has a process—statutory or court rule—by which a court may forfeit a defendant’s bail if the defendant fails to appear at a specific time and place when ordered by the court. However, not all states statutorily authorize bail forfeiture for breach of a release condition other than nonappearance. In fact, certain state statutes, including Colorado, Kansas, Mississippi, and Vermont, prohibit forfeiture of bail for a violation of release other than nonappearance.

Fewer than half of the states statutorily allow bail forfeiture for a conditions violation that is not related to appearance. In the remaining states, statutory language was not identified, but the court may (arguably) use its inherent authority to revoke bail in light of a conditions violation to protect the integrity of the judicial process.

Click on a state for statutory citations or court rules on bail forfeiture.

Interactive Map: Bail Forfeiture

All states allow forfeiture for nonappearance. Those in gold also allow forfeiture for violations other than nonappearance; while states in blue prohibit forfeiture for a violation other than nonappearance.

Select the state on the map for statutory citations or court rules on bail forfeiture.

Alaska

Forfeiture for:

Nonappearance: R. Crim. P. 41(h)
Violation other than nonappearance (Allowed): R. Crim. P. 41(i)

Note: Has both appearance bond and performance bond. See also Alaska Stat. § 12.30.075 (referencing forfeiture for both failure to appear or conditions violation).

Arizona

Forfeiture for:

Nonappearance: R. Crim. P. 7.6 (c) (3)
Violation other than nonappearance (Allowed): R. Crim. P. 7.6 (c) (3)

Note: See State v. Rocha, 572 P.2d 122 (Ariz. App. 1977).

Illinois

Forfeiture for:

Nonappearance: 725 I.L.C.S. 5/110-7
Violation other than nonappearance (Allowed): 725 I.L.C.S. 5/110-7

Note: N/A

Kentucky

Forfeiture for:

Nonappearance: Ky. Rev. Stat. § 431.545
Violation other than nonappearance (Allowed): Ky. Rev. Stat. § 431.545

Note: N/A

Maine

Forfeiture for:

Nonappearance: Me. Rev. Stat. tit. 15, § 1094
Violation other than nonappearance (Allowed): Me. Rev. Stat. tit. 15, § 1094

Note: N/A

Minnesota

Forfeiture for:

Nonappearance: Minn. Stat. §§ 629.48, .58
Violation other than nonappearance (Allowed): Minn. Stat. § 629.58

Note: See State v. Dillon, 529 N.W.2d 387 (Minn. App. 1995).

Missouri

Forfeiture for:

Nonappearance: Mo. Rev. Stat. § 374.770
Violation other than nonappearance (Allowed): Mo. Rev. Stat. § 374.770

Note: N/A

Nebraska

Forfeiture for:

Nonappearance: Neb. Rev. Stat. § 29-1106
Violation other than nonappearance (Allowed): Neb. Rev. Stat. § 29-1106

Note: See State v. Hernandez, 511 N.W.2d 535 (Neb. App. 1993).

Nevada

Forfeiture for:

Nonappearance: Nev. Rev. Stat. § 178.508
Violation other than nonappearance (Allowed): Nev. Rev. Stat. § 178.506

Note: N/A

North Dakota

Forfeiture for:

Nonappearance: R. Crim. P. 46 (f)
Violation other than nonappearance (Allowed): R. Crim. P.46 (f)

Note: See also R. Crim. P. 46 (a) (2) (defining conditions of release).

Ohio

Forfeiture for:

Nonappearance: Ohio Rev. Code § 2937.35
Violation other than nonappearance (Allowed): Ohio Rev. Code § 2937.35

Note: See State v. McLaughlin, 701 N.E.2d 1048 (Ohio App. 1997).

Oregon

Forfeiture for:

Nonappearance: Or. Rev. Stat. § 135.280
Violation other than nonappearance (Allowed): Or. Rev. Stat. § 135.280

Note: See State v. Normile, 627 P.2d 506 (Or. App. 1981).

Pennsylvania

Forfeiture for:

Nonappearance: R. Crim. P. 536
Violation other than nonappearance (Allowed): R. Crim. P. 536

Note: If surety is a third-party, cash or security may only be forfeited when condition violated is failure to appear. See also 42 Pa.C.S.A § 5702 (rules govern in all matters of bail).

Rhode Island

Forfeiture for:

Nonappearance: R.I. Gen. Laws § 12-13-16.1
Violation other than nonappearance (Allowed): R.I. Gen. Laws §§ 11-32-7, 12-13-16.1; R. Crim. P. 46

Note: N/A

South Carolina

Forfeiture for:

Nonappearance: S.C. Code § 17-15-170
Violation other than nonappearance (Allowed): S.C. Code § 17-15-170

Note: See § 17-15-20 (A) (definition of appearance recognizance or bond is broader than appearance only).

Tennessee

Forfeiture for:

Nonappearance: Tenn. Code §§ 40-11-120; -201
Violation other than nonappearance (Allowed): Tenn. Code §§ 40-11-120; -201

Note: N/A

South Dakota

Forfeiture for:

Nonappearance: S.D. Code §§ § 23A-43-31
Violation other than nonappearance (Allowed): S.D. Code §§§ 23A-43-21

Note: N/A

West Virginia

Forfeiture for:

Nonappearance: W. Va. Code § 62-1C-7
Violation other than nonappearance (Allowed): W. Va. Code § 62-1C-7

Note: N/A

Wisconsin

Forfeiture for:

Nonappearance: Wisc. Stat. § 969.13
Violation other than nonappearance (Allowed): Wisc. Stat. § 969.13

Note: See State v. Badzmierowski, 490 N.W.2d 784 (Wisc. App. 1992).

Wyoming

Forfeiture:

Nonappearance: R. Crim. P. 46.4 (b)
Violation other than nonappearance (Allowed): R. Crim. P. 46.4 (b)

Note: Wyo. Stat. Ann. § 7-10-102 (rules govern in all matters of bail)

Colorado

Forfeiture for:

Nonappearance: Colo. Rev. Stat. §§ 16-4-111; -114
Violation other than nonappearance (Prohibited): Colo. Rev. Stat. § 16-4-105

District of Columbia

Forfeiture for:

Nonappearance: D.C. Code § 23-1327
Violation other than nonappearance (Prohibited): D.C. Code §§ 23-1321, -1329

Note: N/A

Delaware

Forfeiture for:

Nonappearance: Del. Code tit. 11 § 2113 (b) (eff. 1/1/19)
Violation other than nonappearance (Prohibited): Del. Code tit. 11 § 2113 (b) (eff. 1/1/19)

Kansas

Forfeiture for:

Nonappearance: Kan. Stat. § 22-2807 (1)
Violation other than nonappearance (Prohibited): Kan. Stat. § 22-2807 (2)

Mississippi

Forfeiture for:

Nonappearance: Miss. Code § 99-5-25 (1) (b)
Violation other than nonappearance (Prohibited): Miss. Code § 99-5-25 (1) (a)

Montana

Forfeiture for:

Nonappearance: Mont. Code § 46-9-503
Violation other than nonappearance (Prohibited): Mont. Code § 46-9-503

New Jersey

Forfeiture for:

Nonappearance: N.J. Stat. § 2A:162-17
Violation other than nonappearance (Prohibited): N.J. Stat. § 2A:162-17

Note: Monetary bail is only to secure defendant’s appearance

New Mexico

Forfeiture for:

Nonappearance: N.M. Stat. § 31-3-2
Violation other than nonappearance (Prohibited): N.M. Stat. § 31-3-2

Note: See State v. Romero, 160 P.3d 914 (2007).

Vermont

Forfeiture for:

Nonappearance: Vt. Stat. tit. 13 § 7560a
Violation other than nonappearance (Prohibited): Vt. Stat. tit. 13 § 7560a

Alabama

Forfeiture for:

Nonappearance: Ala. Code §§ 15-12-80; 15-13-130; 15-13-131; 15-37-137

Arkansas

Forfeiture for:

Nonappearance: Ark. Code § 16-84-201

California

Forfeiture for:

Nonappearance: Cal. Penal Code § 1305

Connecticut

Forfeiture for:

Nonappearance: Conn. Gen. Stat. § 54-65a; R. Sup. Ct. 38-21

Florida

Forfeiture for:

Nonappearance: Fla. Stat. §§ 843.15, 903.23 (b)

Georgia

Forfeiture for:

Nonappearance: Ga. Code §§ 17-6-70, -71

Hawaii

Forfeiture for:

Nonappearance: Haw. Rev. Stat. §§ 804-17, -51

Idaho

Forfeiture for:

Nonappearance: Idaho Code § 19-2915

Indiana

Forfeiture for:

Nonappearance: Ind. Code §§ 35-33-8-7, -8

Iowa

Forfeiture for:

Nonappearance: Iowa Code § 811.6, .9

Louisiana

Forfeiture for:

Nonappearance: La Code Crim. Proc. art. 336

Maryland

Forfeiture for:

Nonappearance: Md. Crim. P. Code § 5-208

Massachusetts

Forfeiture for:

Nonappearance: Mass. Gen. Laws ch. 276 §§ 20F, 71

Michigan

Forfeiture for:

Nonappearance: Mich. Comp. Laws § 765.28

Note: See also § 765.6b (specific to violating condition relating to a protection order).

New Hampshire

Forfeiture for:

Nonappearance: N.H. Rev. Stat. § 597:31

New York

Forfeiture for:

Nonappearance: N.Y. Penal Law § 540.10

North Carolina

Forfeiture for:

Nonappearance: N.C. Gen. Stat. § 15A-544.3

Oklahoma

Forfeiture for:

Nonappearance: Okla. Stat. tit. 22, § 1108

Texas

Forfeiture for:

Nonappearance: Tex. Crim. Proc. Code art. 22.01

Utah

Forfeiture for:

Nonappearance: Utah Code § 77-20-7

Note: See also § 77-3-11 (county shall commence action against principal sureties if undertaking is broken)

Virginia

Forfeiture for:

Nonappearance: Va. Code § 19.2-143

Washington

Forfeiture for:

Nonappearance: Wash. Rev. Code § 10.19.090

Criminal Offenses

In nearly every state, nonappearance not only results in forfeiture of bail, but is also considered a separate crime. This crime is commonly referred to as “bail jumping” or “criminal failure to appear.” Only three states do not have a separate crime for nonappearance—Maryland, Mississippi, and Wyoming. Ohio and Montana limit nonappearance crimes to those where a defendant is released on his or her own recognizance (as opposed to release on security or bond).

The majority of states with a separate crime of “bail jumping” or “failure to appear” require the act of nonappearance to have been done knowingly, willfully, or intentionally. Fewer than 10 states have strict liability for nonappearance.

The penalties for the criminal offense of nonappearance are often tied to the offense level of the underlying charges. For example, if a person is found guilty of bail jumping on a felony charge, the penalty will often be a lesser felony. The same applies to misdemeanor bail jumping. At least four states require that any conviction for bail jumping be served consecutively to any sentence imposed for the underlying charge

Only a handful of states—including Alaska, Colorado, Connecticut, Delaware, Illinois, Maine, and Wisconsin—also have a separate crime for conditions violations other than nonappearance. Generally, a conditions violation results in sanctions, such as new or increased conditions or increased bail. If the violation of release conditions is commission of a new offense, common penalties include revocation of current release, denial of release for new offense, or upon conviction, enhanced or consecutive sentencing.

This map identifies states that criminalize "bail jumping" for nonappearance only (gold), nonappearance and conditions violations (blue), or neither (grey). Click on the state to learn more about criminal penalties associated with bail violations. (Note: *This map does not identify criminal contempt statutes or protection order conditions violations.)

Interactive Map: Criminal Offenses

This map identifies states that criminalize bail or pretrial release violations. States in gold criminalize nonappearance only; state in blue criminalize nonappearance and conditions violations. Click on the state for citations and penalites.