Legal Presumptions to Guide Courts Making Pretrial Determinations
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In United States v. Salerno (1987), Supreme Court Chief Justice William Rehnquist wrote, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Most defendants charged with a crime may be released before trial provided they agree to return for future court dates and can meet other conditions of release.
State constitutions and statutes in many states help to ensure that “liberty is the norm” by codifying legal presumptions favoring release, including release on recognizance or unsecured bond. Additional presumptions go further and specify that release should occur using the least restrictive conditions necessary to ensure 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.
Presumptions of Release and Least Restrictive Conditions
| State |
Presumption of release generally in constitution |
Presumption of release generally in statute |
Presumption of ROR or unsecured bond |
Presumption or requirement of least restrictive conditions of release |
| Alabama |
Const. Art. 1 § 16 |
§ 15-13-108 |
|
|
| Alaska |
Const. Art. I §11 |
§ 12.30.011 |
§ 12.30.011 |
§ 12.30.011 |
| Arizona |
Const. Art. II §22 |
§ 13-3967 |
|
|
| Arkansas |
Cont. Art. 2 § 8 |
|
|
|
| California |
Const. Art. I § 12 |
§ 1271 |
§ 1270
*For Misdemeanors |
§ 1320.10 |
| Colorado |
Const. Art. II § 19 |
§ 16-4-101 |
§ 16-4-113
*For Class 3 Misdemeanors and Petty Offenses |
§ 16-4-103 |
| Connecticut |
Const. Art. 1 § 8 |
|
|
§ 54-63b et seq.
*For defendants not released by law enforcement or who are unable to meet required financial conditions |
| Delaware |
Const. Art. I § 12 |
|
11 Del. C. §2105 |
|
| District of Columbia |
|
|
>§ 23-1321 |
§ 23-1321 |
| Florida |
Const. Art. I § 14 |
|
§ 907.041
(Presumption of non-monetary conditions) |
§ 907.041 |
| Georgia |
|
§§ 17-6-1 & 17-6-13 |
|
§ 17-6-1
*For Misdemeanors |
| Hawaii |
|
§ 804-3 |
|
§ 804-4 |
| Idaho |
Const. Art. I § 6 |
§ 19-2902 & § 19-2903 |
|
|
| Illinois |
Const. Art. I § 9 |
725 ILCS 5/110-4 |
725 ILCS 5/110-5
(Presumption of non-monetary conditions) |
725 ILCS 5/110-5 |
| Indiana |
Const. Art. 1 § 17 |
§ 35-33-8-2 |
|
|
| Iowa |
Const. Art. I § 12 |
§ 811.1 |
§ 811.2 |
§ 811.2
(Must impose conditions as outlined) |
| Kansas |
Const. B. of R. § 9 |
§§ 22-2802 |
|
|
| Kentucky |
Const. § 16 |
|
§ 431.520 |
|
| Louisiana |
Const. Art. I § 18 |
C. Cr. P. Art. 312 |
|
|
| Maine |
|
15 § 1003 |
15 § 1026 |
15 § 1026 |
| Maryland |
|
|
|
|
| Massachusetts |
|
276 § 58 & § 58A |
276 § 58 & § 58A |
276 § 58 & § 58A |
| Michigan |
Const. Art. I § 15 |
§ 765.6 |
|
|
| Minnesota |
Const. Art. I § 7 |
|
§ 629.715 |
§ 629.53
(Must impose conditions as outlined) |
| Mississippi |
Const. Art. 3 § 29 |
|
|
|
| Missouri |
Const. Art. I § 20 |
§ 544.455 |
§ 544.455 |
|
| Montana |
Const. Art. II § 21 |
§ 46-9-102 |
|
§ 46-9-108 |
| Nebraska |
Const. Art. I § 9 |
§ 29-901 |
§ 29-901 |
§ 29-901 |
| Nevada |
Const. Art. 1 § 7 |
§ 178.484 |
|
|
| New Hampshire |
|
597:1 |
597:2 |
|
| New Jersey |
Const. Art. I Para. 11 |
|
§ 2A:162-16 & § 2A:162-17 |
§ 2A:162-16 &
§ 2A:162-17 |
| New Mexico |
Const. Art. II § 13 |
§ 5-401
(Authorized by § 38-1-3) |
§ 5-401
(Authorized by § 38-1-3) |
§ 5-401
(Authorized by § 38-1-3) |
| New York |
|
CPL § 510.10 |
CPL § 510.10 |
CPL § 510.10 |
| North Carolina |
|
|
|
§ 15A-534 |
| North Dakota |
Const. Art. I § 11 |
|
Crim. P. Rule 46 |
|
| Ohio |
Const. Art. I § 9 |
|
|
|
| Oklahoma |
Const. Art. II § 8 |
22 § 1101 |
|
|
| Oregon |
Const. Art. I § 14 |
|
§ 135.245 |
§ 135.245 |
| Pennsylvania |
Const Art. I § 14 |
42 § 5701 |
|
|
| Rhode Island |
Const. Art. I § 9 |
§ 12-13-1 |
|
§ 12-13-1.3 |
| South Carolina |
Const. Art. I § 15 |
|
§ 17-15-10 |
|
| South Dakota |
Const. Art. VI § 8 |
|
§ 23A-43-2 |
§ 23A-43-3
(Must impose conditions as outlined) |
| Tennessee |
Const. Art. I § 15 |
§ 40-11-102 |
|
§ 40-11-116 |
| Texas |
Const. Art. I § 11 |
|
Crim. Proc. Art. § 17.03 |
|
| Utah |
Const. Art. I § 8 |
§ 77-20-1 |
§ 77-20-1 |
§ 77-20-1 |
| Vermont |
Const. § 40 |
|
13 § 7554 |
13 § 7554 |
| Virginia |
|
§ 19.2-120 |
|
|
| Washington |
Const. Art. I § 20 |
|
CRR 3.2 |
CRR 3.2 |
| West Virginia |
|
§ 62-1C-1 |
|
|
| Wisconsin |
Const. Art. I § 8 |
§ 969.01 |
|
|
| Wyoming |
Const. Art. 1 § 14 |
§ 7-10-101 |
Cr. P. Rule 46.1
(Authorized by § 7-10-102) |
Cr. P. Rule 46.1
(Authorized by§ 7-10-102) |
Source: National Conference of State Legislatures, 2020
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.
Additional NCSL Resources