Pretrial Release: Guidance for Courts                                                                                                                           

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

• Criminal Justice homepage
• Pretrial homepage