Guidance for Setting Release Conditions

5/13/2015                                                                                                                                                

Guidance for Setting Release Conditions

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.” Statutes and case law limit additional release conditions that can be imposed by courts to those which ensure the appearance of the defendant and the safety of victims, witnesses and the public. Examples of how some states have codified these provisions include:

The purpose of Delaware’s pretrial release laws are “…to empower and equip the courts to utilize a system of personal recognizance or an unsecured personal appearance bond to be used whenever feasible consistent with a reasonable assurance of the appearance of the accused and the safety of the community…” [11 Del. C. §2101].

In Kansas, the purpose of imposing release conditions“…is to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges or to testify, or pending appeal, when detention serves neither the ends of justice nor the public interest.” [§22-2801].

Within these parameters, about half of states have adopted laws that provide additional guidance to courts when setting conditions of pretrial release.

Twenty one states provide a presumption in favor of releasing defendants on personal recognizance or an unsecured appearance bond. Personal recognizance is a written promise by the defendant to appear in court. For an unsecured appearance bond, the court sets a monetary bail amount but payment is required only if the defendant fails to appear. An additional two states—Florida and Illinois—provide a presumption in favor of releasing defendants on non-monetary conditions. Additional conditions can be imposed only if the court determines it necessary to ensure appearance and safety.

In 16 states, the courts are required to impose the least restrictive condition, or combination of conditions, that will reasonably ensure appearance and safety. Five states—Iowa, Minnesota, Nebraska, North Carolina and South Dakota—do not specifically require the least-restrictive conditions; rather they enumerate one or more conditions of release that courts must consider. Statutes in these states provide that if the court determines release on personal recognizance or an unsecured appearance bond will not reasonably assure court appearance or safety, then the court must require supervision by a person or organization. If that primary condition does not provide adequate assurance, the court can impose a combination of other enumerated conditions that include restrictions on travel, association or residence; house arrest; night reporting; or financial bond.

An emerging area of pretrial policy involves use of risk assessment to evaluate the risk posed by an individual defendant and the likelihood that he or she will commit a new offense or fail to appear. While empirical risk assessment tools are used around the country by local jurisdictions, it is only recently that lawmakers have provided statewide, statutory guidance on their use. Fifteen states—Colorado, Connecticut, Delaware, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Maine, New Jersey, Oklahoma, South Carolina, Vermont, Virginia and West Virginia—authorize courts to consider the results of a risk assessment when making the pretrial release decision. Six States—Delaware, Colorado, Kentucky, New Jersey, South Carolina and West Virginia—require risk assessments for all defendants. Kansas and Oklahoma assessments apply to defendants who will potentially be supervised by pretrial services program. Maine and Louisiana require assessments for domestic violence offenses. In Hawaii and Virginia, assessments are utilized at the court’s discretion.

The chart below provides more information on statutory guidance for setting pretrial release conditions.

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50 State Chart - Guidance for Setting Release Conditions
State Statute Presumption Of Personal Recognizance or Unsecured Appearance Bond Least Restrictive Conditions Required Instructed to Use a Risk Assessment
Alabama No statute located     Not specified
Alaska Stat. §12.30.011(a) & (b) X X Not specified
Arizona No statute located     Not specified
Arkansas No statute located     Not specified
California Penal Code §1270 (a)
X
For misdemeanors
  Not specified
Colorado Rev. Stat. §16-4-113; §16-4-103
X
For class 3 misdemeanors and petty offenses
X Yes, applies to all defendants.
Connecticut Gen. Stat. §54-63d(a); §54-63c; §54-63b  
X
Applies to defendants not released by law enforcement or who are unable to meet financial conditions enumerated in §54-63c(a).
Yes, for defendants not released on personal recognizance bond, unsecured appearance bond or for those unable to meet financial conditions.
Delaware Code Ann. tit. 11 Del. C. § 2105; 11 Del. C. § 2104 X   Yes, applies to all defendants.
District of Columbia Code §23-1321(b) & (c) X X Not specified
Florida Stat. §907.041(3); §907.041(2) authorizes R. Cr. P. 3.131 Presumption of non-monetary conditions
X
 
Not specified
Georgia No statute located     Not specified
Hawaii Rev. Stat. §353-10     Yes, at the court’s discretion.
Idaho No statute located     Not specified
Illinois 725 ILCS 5/110-2; 725 ILCS 185/20; 725 ILCS 5/110-5 (f) Presumption of non-monetary conditions   Yes, for victims’ offenses enumerated in 725 ILCS 5/110-5(f) or when a pretrial services agency provides release recommendations to the court.
Indiana No statute located     Not specified
Iowa Code §811.2 X Must impose conditions as enumerated in §811.2(1). Not specified
Kansas Stat. Ann. §22-2815     Yes, when considering release to a personal recognizance program.
Kentucky Rev. Stat. Ann. §431.520; §431.066(a) X   Yes, applies to all defendants.
Louisiana Rev. Stat. Ann. C. Cr. P. Art. 330.3      Yes, for felony offenses against a family or household member or dating partner. 
Maine Rev. Stat. tit. 15 §1026 (2-A); (3-A); (4)(9-A) X X Yes, for domestic violence offenses.
Maryland No statute located     Not specified
Massachusetts Gen. Laws ch. 276 §58; 276 §58A(2)(B) X X Not specified
Michigan No statute located     Not specified
Minnesota
 
Stat. §629.715(1)(a); §629.53 authorizes R. Cr. P. 6.02 X Must impose conditions as enumerated in Rule 6.02(1). Not specified
Mississippi No statute located     Not specified
Missouri No statute located     Not specified
Montana Code Ann. §46-9-108(2)   X Not specified
Nebraska Rev. Stat. §29-901 X Must impose conditions as enumerated in §29-901. Not specified
Nevada No statute located     Not specified
New Hampshire Rev. Stat. Ann. §597:2(II); (VI) X   Not specified
New Jersey Stat. Ann. §2A:162-16; §2A:162-17  X X Yes, as enumerated in §2A:162-16.  
New Mexico Stat. Ann. §38-1-3 authorizes R. Cr. P. 5-401(A) & (D)(2) X X Not specified
New York No statute located     Not specified
North Carolina Gen. Stat. §15A-534   Must impose conditions as enumerated in §15A-534(a) & (b). Not specified
North Dakota Cent. Code §29-08 superseded in part by R. Cr. P. 46 X   Not specified
Ohio No statute located     Not specified
Oklahoma Stat. tit. 22 §1105.3(B)     Yes, when considering release to a pretrial services program.
Oregon Rev. Stat. §135.245(3) X X Not specified
Pennsylvania No statute located     Not specified
Rhode Island Gen. Laws §12-13-1.3(e)   X Not specified
South Carolina Code Ann. §17-15-10; § 22-5-58 X   Yes, applies to all defendants eligible for release.
South Dakota Codified Laws §23A-43-2; §23A-43-3 X Must impose conditions as enumerated in §23A-43-3. Not specified
Tennessee Code Ann. §40-11-116   X Not specified
Texas No statute located     Not specified
Utah No statute located     Not specified
Vermont Stat. Ann. tit. 13 §7554(a); 13 §7554(c) X X Yes, for defendants as enumerated in 13 §7554(c) 
Virginia Code Ann. §19.2-152.3     Yes, at the court's discretion.
Washington Rev. Code §10.19 superseded in part by Super. Ct. Crim. R. §3.2 X X Not specified
West Virginia Code §62-11F-1 et seq.      Yes, for all defendants eligible for release. 
Wisconsin No statute located     Not specified
Wyoming Stat. Ann. §7-10-102 authorizes R. Cr. P. 46.1(b); (c)(B) X X Not specified

Source: National Conference of State Legislatures, 2015
Westlaw was used to conduct this research.

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Court rule and case law provide further guidance to courts for setting conditions of release. Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.
 
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database. 

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