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

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.

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
Alaska
§ 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.  

Arizona

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.

 

Colorado

§ 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.”

Connecticut

§ 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.

Delaware

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.

 

Georgia

§ 17-6-1

 

 

 

When determining bail, court to consider defendant’s financial resources and obligations (including to dependents).

Hawaii

§ 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.

 

Illinois

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”

Indiana

§ 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.

 

Kentucky

§ 431.066

Yes

All defendants

Court to consider risk assessment in determining release and bail.

 

Massachusetts

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.

 

Montana

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.

 

Nebraska

§ 29-901

 

 

 

Judge must consider defendant’s “financial ability” to pay bond.

Nevada

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 &

510.30

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.

Pennsylvania

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…”

 

Utah

This resource

No

 

Courts are piloting the “Public Safety Assessment.”

 

Vermont

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.

Virginia

§ 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