Pretrial Release: Guidance for Courts                                                                                                                           

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.”

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 the District of Columbia 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 addition to codifying these presumptions, states have also encouraged or required ability-to-pay considerations for financial conditions and the use of a risk assessment to further guide court decision making about release.

Statutory laws in at least seven states require courts to adopt or consider risk assessments in at least some, if not all, cases on a statewide basis. Another eight states have statutes that authorize or encourage, but do not require, adopting a risk assessment tool on a statewide basis. Ten states have laws requiring courts to consider a defendant’s ability to pay financial conditions of release when setting conditions with a monetary component.

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
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 &
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.

Guidance on Risk Assessment and Ability to Pay Consideration
State/Citation Risk Assessment Ability to Pay Consideration When Determining Release/Conditions
Required, Authorized, or Encouraged Use in Statute Who Additional Notes
§ 33.07.010 et seq.
Yes All defendants Corrections department required to create pretrial services program. Pretrial services office to conduct risk assessment and make a recommendation to the judge before a defendant’s first appearance.  
State Court Rules
No All defendants Adopted in 2017, requires courts to use risk assessment statewide. Requires “individualized determination” of defendant’s “financial circumstances” rather than reliance on a bail schedule.
California *   *§ 1320.35 requires agencies that use a pretrial assessment tool to get it validated. Requires Judicial Council to keep list of validated assessments on file.  
§ 16-4-103 et seq.
Yes Any defendant Requires, if a bond schedule is used, factors addressing the individual risk a defendant poses be considered and prohibits the bail decision from being based solely on the alleged offense. Requires courts, if practical, to consider results of an “empirically developed” risk assessment instrument. Allows a judge to have any bail-eligible defendant evaluated by a pretrial services program so that recommendations on appropriate release conditions can be made. Requires that the chief judge in every judicial district consult annually with counties to develop pretrial services programs. Court to take into consideration defendant’s “financial condition.”
§ 54-63b et seq. &
this report
*No Defendants not released on personal recognizance or unsecured bond, or unable to meet financial conditions. *Statute does not specifically require use of a risk assessment tool. However, the statute does specify a set of weighted criteria that the state had used to inform release staff since the 1980s. The state adopted their first actuarial risk assessment in 2003. Statute requires Court Support Services Division to establish uniform weighted release criteria, considerations to include “defendant’s financial resources.
11 § 2104
Yes   Requires objective tool that gauges defendants’ risk of flight and re-arrest to help magistrates make informed decisions about the conditions of pretrial release. Specifies that any such risk assessment tools are not binding on the court and that they are factors to be considered in the totality of the circumstances when determining conditions of release imposed on the defendant.  
§ 17-6-1
      When determining bail, court to consider defendant’s financial resources and obligations (including to dependents).
§ 353-10 & § 804-9
Yes Adult defendants Requires risk assessments within three working days of admission to a community correctional center, which must then be provided to the court for consideration when determining conditions of release. Requires intake service centers to inquire and report on a defendant’s financial circumstances. Requires courts to consider a defendant’s ability to afford bail if financial conditions are set.
Idaho *   *If pretrial risk assessment is used § 19-1910 outlines requirements for tool.  
725 ILCS 5/110-5 & this policy
Yes All defendants State supreme court may establish a risk-assessment tool for establishing bail. Requires the amount of bail to be “considerate of the financial ability of the accused”
§ 35-33-8-.05
& this rule
Yes All defendants Requires Supreme Court to adopt rules to establish pretrial risk assessment. Requires a court to consider the pretrial risk assessment (if available) and bail guidelines when setting bail and conditions of release. The court is not required to use assessment if it would delay defendant’s release.  <
§ 431.066
Yes All defendants Court to consider risk assessment in determining release and bail.  
276 § 57
      Defendant’s financial resources to be considered when setting bail.
Michigan *   *SB 848 (2018) appropriates funds and requires the state court administrative office to pilot a pretrial risk assessment tool.  
MT SB 59 (2017)
* Felony defendants *Requires the office of the court administrator to develop and administer a pretrial program for felony defendants. Requires courts accepting specified funds to use a validated risk assessment tool.  
§ 29-901
      Judge must consider defendant’s “financial ability” to pay bond.
This order
No   Effective in 2019, the state Supreme
Court adopted a statewide risk assessment.
New Jersey
§ 2A: 162-16 et seq.
Yes Defendants not charged on a complaint and summons. Pretrial services program administers risk assessments and make recommendations for release and appropriate conditions. Requires pretrial services organization to supervise pretrial defendants.  
New Mexico
These rules
No Any defendant Effective in 2017, court rules require consideration of any available results from
a pretrial risk assessment instrument which has been approved by the Supreme Court for use in the jurisdiction.
Requires court to consider financial resources of defendant while setting least restrictive conditions of release.
New York §§ 510.45 &
Yes Any defendant Requires any risk assessment tool results used in a release or conditions determination to be available to defendant upon request. Also sets requirements for validation of tool. Court must take into account defendant’s individual financial circumstances including ability to post bail without undue hardship and ability to obtain a bond.
18 § 2711
Yes Defendants charged with domestic violence offenses. Presiding judge of courts of common pleas authorized to adopt a pretrial risk assessment tool. Tool may be used to determine whether defendant poses threat to victim. Tool cannot be only consideration.  
Rhode Island
§ 12-13-24.1
Yes   Pre-arraignment report may include results from a risk screen. Risk screen defined as a “validated, empirically based pretrial risk tool…”  
This resource
No   Courts are piloting the “Public Safety Assessment.”  
13 § 7554 et seq.
Yes Defendants who are unable to post bail within 24 hours, charged with sex offenses requiring registration, or charged with a crime whose sentence is life imprisonment. Results are to be used by court to inform decisions of release and conditions. Requires consideration of financial means if requiring execution of secured appearance bond.
§ 19.2-152.3
Yes   Instructs the Department of Criminal Justice Services to develop a risk assessment to be used by pretrial services agencies in jurisdictions that elect to establish pretrial services. Tasks the department with prescribing standards for the development, implementation, operation and evaluation of pretrial services.  
West Virginia
§ 15A-5-7
Yes   Within three calendar days, risk assessment (approved and adopted by state Supreme Court) shall be administered.  

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