Pretrial Release: Detention

June 20, 2022

State constitutions and statutes establish the foundation of the pretrial release/detention framework in every state. Most individuals who are arrested are eligible to be released before trial, with 41 state constitutions containing a right to bail.

In the remaining nine states and the District of Columbia, constitutions only address prohibitions on excessive bail, but statutory law and court rule provide guidance for release and detention decisions.

Each of the 41 states that has a constitutional right to bail also authorizes detention for at least some defendants. Of those, 19 have a broad, traditional right to bail and very limited detention that allows detainment only for capital cases.

In the other 22, the constitutions expand detention beyond capital cases. Circumstances authorizing detention include:

  • Certain charges are alleged and there is a finding that the defendant would present a danger to the community or another person.
  • Certain charges are alleged, and a defendant is already on pretrial release for another offense.
  • Certain charges are alleged, and the defendant is already on post-conviction supervision.
  • Certain charges are alleged, and the defendant has a previous conviction for specified offenses.
  • The defendant is on supervision or has a prior offense and there is a finding of dangerousness.
  • A defendant violates conditions of release.

Statutes and court rules also play a role in establishing the pretrial release/detention framework in states that have constitutional detention provisions. The two charts below contain statutory and constitutional language that address the charges and circumstances that make a defendant eligible for detention. Together these constitutional and statutory provisions are known as the “detention eligibility net.”

In some states, particularly those with a broad constitutional right to bail, statutory provisions simply restate or do not expand the detention net beyond what is set out in the constitution. In a handful of states, statutes add to the detention net, with some constitutional provisions explicitly empowering legislatures to enact procedures or define circumstances and categories of charges that make up the detention net. Constitutions, statutes and court rules must be read together to determine the full parameters of the detention eligibility net.

Detention eligibility does not mean a defendant will automatically be detained. Most states require a “further limiting process,” an additional finding by the court to justify intentional detention of a defendant. In most state constitutions, this finding requires courts to determine that the proof is evident, and the presumption of guilt is great. There are a few variations of this language. For example, Vermont’s constitution requires “when the evidence of guilt is great” and Utah’s specifies “substantial evidence to support the charge.”

Sometimes the further limiting process addresses likelihood of danger or risk of flight. New Jersey, for example, amended their constitution in 2017 to say:

“All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community or prevent the person from obstructing or attempting to obstruct the criminal justice processes.”

The detention net is limitless under this new constitutional provision; meaning that all defendants are eligible for detention. The provision shifted focus away from deciding based on the charges and circumstances listed in a detention net. Instead, the further limiting process is determinative, requiring courts to evaluate risk of nonappearance and risk to community safety.

Notes: Constitutional and statutory provisions are shown in two separate charts. Court rules are included where necessary in the statutory chart. The language is excerpted to focus on provisions impacting the detention net and further limiting process.

The statutory excerpts below do not include time-limited temporary detention such as “cooling off periods.” For information on time-limited detention see NCSL’s Victims’ Pretrial Release Rights and Protections. The excerpts are also not inclusive of due process and statutory procedures for detention hearings or legal presumptions weighting court decisions towards detention under certain circumstances. Release/detention for competency and commitment proceedings is not addressed.

 

50-State Chart | State Constitutional Provisions

STATE

CITATION

Alabama

“That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great…”

Alabama Const. Art. I, Sec. 16

Alaska

“In all criminal prosecutions, .... [t]he accused is entitled ... to be released on bail, except for
capital offenses when the proof is evident or the presumption great.”

Alaska Const. Art. I, § 11

Arizona

“A. All persons charged with crime shall be bailable by sufficient sureties, except:

1.    For capital offenses, sexual assault, sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age when the proof is evident or the presumption great.
2.    For felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.
3.    For felony offenses if the person charged poses a substantial danger to any other person or the community, if no conditions of release which may be imposed will reasonably assure the safety of the other person or the community and if the proof is evident or the presumption great as to the present charge.
4.    For serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.
B. The purposes of bail and any conditions of release that are set by a judicial officer include:
1.    Assuring the appearance of the accused.
2.    Protecting against the intimidation of witnesses.
3.    Protecting the safety of the victim, any other person or the community.”

A.R.S. Const. Art. II, § 22

Arkansas

“All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.”

Ark. Const. Art. 2, § 8

California

“A person shall be released on bail by sufficient sureties, except for:

a)    Capital crimes when the facts are evident or the presumption great;
b)    Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or
c)    Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.

Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.

A person may be released on his or her own recognizance in the court’s discretion.”

Cal Const, Art. I § 12

Colorado

“(1) All persons shall be bailable by sufficient sureties pending disposition of charges except:
(a)    For capital offenses when proof is evident or presumption is great; or
(b)    When, after a hearing held within ninety-six hours of arrest and upon reasonable notice, the court finds that proof is evident or presumption is great as to the crime alleged to have been committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases:
(I)    A crime of violence, as may be defined by the general assembly, alleged to have been committed while on probation or parole resulting from the conviction of a crime of violence;
(II)    A crime of violence, as may be defined by the general assembly, alleged to have been committed while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found;
(III)    A crime of violence, as may be defined by the general assembly, alleged to have been committed after two previous felony convictions, or one such previous felony conviction if such conviction was for a crime of violence, upon charges separately brought and tried under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States which, if committed in this state, would be a felony; or…

(2) Except in the case of a capital offense, if a person is denied bail under this section, the trial of the person shall be commenced not more than ninety days after the date on which bail is denied. If the trial is not commenced within ninety days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of the bail for the person.”

Colo. Const. Art. II, Section 19

Connecticut

“In all criminal prosecutions, the accused shall have a right to … be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great…”

Conn. Const. Art. I., Sec. 8

Delaware

“All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is positive or the presumption great; and when persons are confined on accusation for such offenses their friends and counsel may at proper seasons have access to them.”

Del. Const. Art. I, § 12

Washington, D.C. No constitutionally defined detention net.
Florida

“Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.”

Fla. Const. Art. I, § 14

Georgia No constitutionally defined detention net.
Hawaii No constitutionally defined detention net.
Idaho

“All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted.”

Idaho Const. Art. I, § 6

Illinois

“All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; and felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person.”

Illinois Const., Art. I, § 9

Indiana

“Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.”

Ind. Const. Art. 1, § 17

Iowa

“All persons shall, before conviction, be bailable, by sufficient sureties, except for capital offences where the proof is evident, or the presumption great.”

Iowa Const., Art. I § 12

Kansas

“All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great.”

Kan. Const. B. of R. § 9

Kentucky

“All prisoners shall be bailable by sufficient securities, unless for capital offenses when the proof is evident or the presumption great…”

Ky. Const. § 16

Louisiana

“A. Excessive bail shall not be required. — Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great…

B. However, a person charged with a crime of violence as defined by law or with production, manufacture, distribution, or dispensing or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance as defined by the Louisiana Controlled Dangerous Substances Law, and the proof is evident and the presumption of guilt is great, shall not be bailable if, after a contradictory hearing, the judge or magistrate finds by clear and convincing evidence that there is a substantial risk that the person may flee or poses an imminent danger to any other person or the community.”

La. Const. Art. I, § 18

Maine

“No person before conviction shall be bailable for any of the crimes which now are, or have been denominated capital offenses since the adoption of the Constitution, when the proof is evident or the presumption great, whatever the punishment of the crimes may be.”

Me. Const. Art. I, § 10

Maryland No constitutionally defined detention net.
Massachusetts No constitutionally defined detention net.
Michigan
 

“No person shall be subject for the same offense to be twice put in jeopardy. All persons shall, before conviction, be bailable by sufficient sureties, except that bail may be denied the following persons when the proof is evident or the presumption great:

(A)    A person who, within the 15 years immediately preceding a motion for bail pending the disposition of an indictment for a violent felony or of an arraignment on a warrant charging a violent felony, has been convicted of 2 or more violent felonies under the laws of this state or under substantially similar laws of the United States or another state, or a combination thereof, only if the prior felony convictions arose out of at least 2 separate incidents, events, or transactions.
(B)    A person who is indicted for, or arraigned on a warrant charging, murder or treason.
(C)    A person who is indicted for, or arraigned on a warrant charging, criminal sexual conduct in the first degree, armed robbery, or kidnapping with intent to extort money or other valuable thing thereby, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.
(D)    A person who is indicted for, or arraigned on a warrant charging, a violent felony which is alleged to have been committed while the person was on bail, pending the disposition of a prior violent felony charge or while the person was on probation or parole as a result of a prior conviction for a violent felony.

If a person is denied admission to bail under this section, the trial of the person shall be commenced not more than 90 days after the date on which admission to bail is denied. If the trial is not commenced within 90 days after the date on which admission to bail is denied and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of bail for the person.

As used in this section, “violent felony” means a felony, an element of which involves a violent act or threat of a violent act against any other person.”

MCLS Const. Art. I, § 15

Minnesota

“All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.”

Minn. Const., Art. I, § 7

Mississippi

“(1) Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses (a) when the proof is evident or presumption great; or (b) when the person has previously been convicted of a capital offense or any other offense punishable by imprisonment for a maximum of twenty (20) years or more.

(2) If a person charged with committing any offense that is punishable by death, life imprisonment or imprisonment for one (1) year or more in the penitentiary or any other state correctional facility is granted bail and (a) if that person is indicted for a felony committed while on bail; or (b) if the court, upon hearing, finds probable cause that the person has committed a felony while on bail, then the court shall revoke bail and shall order that the person be detained, without further bail, pending trial of the charge for which bail was revoked. For the purposes of this subsection (2) only, the term “felony” means any offense punishable by death, life imprisonment or imprisonment for more than five (5) years under the laws of the jurisdiction in which the crime is committed. In addition, grand larceny shall be considered a felony for the purposes of this subsection.

(3) In the case of offenses punishable by imprisonment for a maximum of twenty (20) years or more or by life imprisonment, a county or circuit court judge may deny bail for such offenses when the proof is evident or the presumption great upon making a determination that the release of the person or persons arrested for such offense would constitute a special danger to any other person or to the community or that no condition or combination of conditions will reasonably assure the appearance of the person as required.

(4) In any case where bail is denied before conviction, the judge shall place in the record his reasons for denying bail. Any person who is charged with an offense punishable by imprisonment for a maximum of twenty (20) years or more or by life imprisonment and who is denied bail prior to conviction shall be entitled to an emergency hearing before a justice of the Mississippi Supreme Court. The provisions of this subsection (4) do not apply to bail revocation orders.”

Miss. Const. Ann. Art. 3, § 29

Missouri

“That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.”

Mo. Const. Art. I, § 20

Montana

“All persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.”

Mont. Const., Art. II § 21

Nebraska

“All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great.”

Ne. Const. Art. I, § 9

Nevada

“All persons shall be bailable by sufficient sureties; unless for Capital Offenses or murders punishable by life imprisonment without possibility of parole when the proof is evident or the presumption great.”

Nev. Const. Art. 1, § 7

New Hampshire No constitutionally defined detention net.
New Jersey

“All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial release and the denial thereof authorized under this provision.”

N.J. Const., Art. I, Para. 11

New Mexico

“All persons shall, before conviction be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great and in situations in which bail is specifically prohibited by this section. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Bail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. An appeal from an order denying bail shall be given preference over all other matters.

A person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond. A defendant who is neither a danger nor a flight risk and who has a financial inability to post a money or property bond may file a motion with the court requesting relief from the requirement to post bond. The court shall rule on the motion in an expedited manner.”

N.M. Const. Art. II, § 13

New York No constitutionally defined detention net.
North Carolina No constitutionally defined detention net.
North Dakota

“All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.”

N.D. Const. Art. I, § 11

Ohio

“All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

The General Assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(b) of the Constitution of the state of Ohio.”

Oh. Const. Art. I, § 9

Oklahoma

“A. All persons shall be bailable by sufficient sureties, except that bail may be denied for:
1.    capital offenses when the proof of guilt is evident, or the presumption thereof is great;
2.    violent offenses;
3.    offenses where the maximum sentence may be life imprisonment or life imprisonment without parole;
4.    felony offenses where the person charged with the offense has been convicted of two or more felony offenses arising out of different transactions; and
5.    controlled dangerous substances offenses where the maximum sentence may be at least ten (10) years imprisonment.
On all offenses specified in paragraphs 2 through 5 of this section, the proof of guilt must be evident, or the presumption must be great, and it must be on the grounds that no condition of release would assure the safety of the community or any person.”

Okl. Const. Art. 2, § 8

Oregon

“Offences, except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong.”

Ore. Const. Art. I, § 14

“(b) The right to have decisions by the court regarding the pretrial release of a criminal defendant based upon the principle of reasonable protection of the victim and the public, as well as the likelihood that the criminal defendant will appear for trial. Murder, aggravated murder and treason shall not be bailable when the proof is evident or the presumption strong that the person is guilty. Other violent felonies shall not be bailable when a court has determined there is probable cause to believe the criminal defendant committed the crime, and the court finds, by clear and convincing evidence, that there is danger of physical injury or sexual victimization to the victim or members of the public by the criminal defendant while on release.”

Ore. Const. Art. I, § 43

Pennsylvania

“All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great…”

Pa. Const. Art. I, § 14

Rhode Island
 

“All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, or for offenses involving the use or threat of use of a dangerous weapon by one already convicted of such offense or already convicted of an offense punishable by imprisonment for life, or for offenses involving the unlawful sale, distribution, manufacture, delivery, or possession with intent to manufacture, sell, distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great.”

R.I. Const. Art. I, § 9

South Carolina

“All persons shall be, before conviction, bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event.”

S.C. Const. Ann. Art. I, § 15

South Dakota

“All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great.”

S.D. Const. Article VI, § 8

Tennessee

“That all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great.”

Tenn. Const. Art. I, § 15

Texas

“All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.”

Tex. Const. Art. I, § 11

“(a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.
(b) In this section:

(1) “Violent offense” means:
(A) murder;
(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;
(C) aggravated kidnapping; or
(D) aggravated robbery.
(2) “Sexual offense” means:
(A) aggravated sexual assault;
(B) sexual assault; or
(C) indecency with a child.”

Tex. Const. Art. I, § 11a

“The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.”

Tex. Const. Art. I, § 11c

Utah

“(1) All persons charged with a crime shall be bailable except:

(a) persons charged with a capital offense when there is substantial evidence to support the charge; or
(b) persons charged with a felony while on probation or parole, or while free on bail awaiting trial on a previous felony charge, when there is substantial evidence to support the new felony charge; or
(c) persons charged with any other crime, designated by statute as one for which bail may be denied, if there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community or is likely to flee the jurisdiction of the court if released on bail.

(2) Persons convicted of a crime are bailable pending appeal only as prescribed by law.”

Utah Const. Art. I, § 8

Vermont

“Excessive bail shall not be exacted for bailable offenses. All persons shall be bailable by sufficient sureties, except as follows:

(1) A person accused of an offense punishable by death or life imprisonment may be held without bail when the evidence of guilt is great.
(2) A person accused of a felony, an element of which involves an act of violence against another person, may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person’s release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence. A person held without bail prior to trial under this paragraph shall be entitled to review de novo by a single justice of the Supreme Court forthwith.
(3) A person awaiting sentence, or sentenced pending appeal, may be held without bail for any offense.

A person held without bail prior to trial shall be entitled to review of that determination by a panel of three Supreme Court Justices within seven days after bail is denied.

Except in the case of an offense punishable by death or life imprisonment, if a person is held without bail prior to trial, the trial of the person shall be commenced not more than 60 days after bail is denied. If the trial is not commenced within 60 days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set bail for the person.”

V.S.A. Const. § 40

Virginia No constitutionally defined detention net.
Washington

“All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great. Bail may be denied for offenses punishable by the possibility of life in prison upon a showing by clear and convincing evidence of a propensity for violence that creates a substantial likelihood of danger to the community or any persons, subject to such limitations as shall be determined by the legislature.”

Wash. Const. Art. I, § 20

West Virginia No constitutionally defined detention net.
Wisconsin

“(2) All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court. The legislature may authorize, by law, courts to revoke a persons release for a violation of a condition of release.

(3) The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant.”

Wis. Const. Art. I, § 8

Wyoming

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.”

Wyo. Const. Art. 1, § 14

Source: National Conference of State Legislatures, June 2022


 

50-State Chart | Statutory Provisions Specifying the Parameters of Pretrial Detention

STATE

CITATION

Alabama

In all cases of misdemeanors and felonies, unless otherwise specified, the defendant is, before conviction, entitled to bail as a matter of right. All sheriffs and police chiefs of this state shall ensure that one of their officers or themselves are available to approve and accept bail 24 hours each day, seven days a week, except during the hours the clerks of the courts provide personnel for bail acceptance and approval.

Code of Ala. § 15-13-108

(a) A defendant cannot be admitted to bail when he is charged with an offense which may be punished by death if the court is of the opinion, on the evidence adduced, that he is guilty of the offense in the degree punishable capitally, nor when he is charged with a personal injury to another which is likely to produce death and which was committed under circumstances such as would, if death arises from such injury, constitute an offense which may be punished by death.

(b) In cases punishable capitally, the defendant is entitled to bail as a matter of right when the state, after the finding of the indictment, has continued the case twice, without his consent, for the testimony of absent witnesses.
In such case, if the indictment is dismissed, the defendant, on application for bail, is entitled to the benefit of any continuance had upon such indictment by the state for absent witnesses; and, if another indictment is not found at the same court at which the former is dismissed, the order of dismissal is to be taken as a continuance by the state for absent witnesses.

Code of Ala. § 15-13-3

Alaska

(d) In making a finding regarding the release of a person under this chapter,
(1) except as otherwise provided in this chapter, the burden of proof is on the prosecuting authority that a person charged with an offense should be detained or released with conditions described in (b) of this section or AS 12.30.016;
(2) there is a rebuttable presumption that there is a substantial risk that the person will not appear and the person poses a danger to the victim, other persons, or the community, if the person is
(A) charged with an unclassified felony, a class A felony, a sexual felony, or a felony under AS 28.35.030 or 28.35.032;
(B) charged with a felony crime against a person under AS 11.41, was previously convicted of a felony crime against a person under AS 11.41 in this state or a similar offense in another jurisdiction, and less than five years have elapsed between the date of the person’s unconditional discharge on the immediately preceding offense and the commission of the present offense;
(C) charged with a felony offense committed while the person was on release under this chapter for a charge or conviction of another offense;
(D) charged with a crime involving domestic violence, and has been convicted in the previous five years of a crime involving domestic violence in this state or a similar offense in another jurisdiction;
(E) arrested in connection with an accusation that the person committed a felony outside the state or is a fugitive from justice from another jurisdiction, and the court is considering release under AS 12.70.
(e) If the supreme court establishes a schedule of bail amounts or conditions of release for misdemeanor offenses, the schedule must include a condition providing that a correctional facility shall, at the time of release, conduct a chemical test of the breath of a person who has been arrested and who is intoxicated and shall detain the person until the test result indicates that the person’s breath has less than 0.08 grams of alcohol for each 210 liters of breath or, with the consent of the person, release the person to another person who is willing and able to provide care for the person.

Alaska Stat. § 12.30.011

See also Hamburg v. State, Alaska App., Oct. 5, 2018 for a discussion of the unconstitutionality of statutorily authorized detention under the previous version of this statute.

Arizona

A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following:
1. A capital offense.
2. Sexual assault.
3. Sexual conduct with a minor under either of the following circumstances:
(a) At the time of the offense, the person was at least eighteen years of age and the victim was under thirteen years of age.
(b) At the time of the offense, the victim was thirteen or fourteen years of age and the person was at least ten years older than the victim.
4. Molestation of a child under either of the following circumstances:
(a) At the time of the offense, the person was at least eighteen years of age and the victim was under thirteen years of age.
(b) At the time of the offense, the victim was thirteen or fourteen years of age and the person was at least ten years older than the victim.
5. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally. For the purposes of this paragraph:
(a) The court shall consider all of the following in making a determination that a person has entered or remained in the United States illegally:
(i) Whether a hold has been placed on the arrested person by the United States immigration and customs enforcement.
(ii) Any indication by a law enforcement agency that the person is in the United States illegally.
(iii) Whether an admission by the arrested person has been obtained by the court or a law enforcement agency that the person has entered or remained in the United States illegally.
(iv) Any information received from a law enforcement agency pursuant to section 13-3906.
(v) Any evidence that the person has recently entered or remained in the United States illegally.
(vi) Any other relevant information that is obtained by the court or that is presented to the court by a party or any other person.
(b) “Serious felony offense” means any class 1, 2, 3 or 4 felony or any violation of section 28-1383.
B. The purposes of bail and any conditions of release that are set by a judicial officer include:
1. Assuring the appearance of the accused.
2. Protecting against the intimidation of witnesses.
3. Protecting the safety of the victim, any other person or the community.
C. The initial determination of whether an offense is bailable pursuant to subsection A of this section shall be made by the magistrate or judicial officer at the time of the person’s initial appearance.
D. Except as provided in subsection A of this section, a person who is in custody shall not be admitted to bail if the person is charged with a felony offense and the state certifies by motion and the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which the person is charged. For the purposes of this subsection, “violent offense” means either of the following:
1. A dangerous crime against children.
2. Terrorism.

A.R.S. § 13-3961

Arkansas

None specified – see state constitution.

California

A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his or her guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.

Cal Pen Code § 1270.5

A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his or her guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.

Cal Pen Code § 1270.5

Colorado

(1) All persons shall be bailable by sufficient sureties except:
(a) For capital offenses when proof is evident or presumption is great; or
(b) When, after a hearing held within ninety-six hours of arrest and upon reasonable notice, the court finds that the proof is evident or the presumption is great as to the crime alleged to have been committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases:
(I) A crime of violence alleged to have been committed while on probation or parole resulting from the conviction of a crime of violence;
(II) A crime of violence alleged to have been committed while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found;
(III) A crime of violence alleged to have been committed after two previous felony convictions, or one such previous felony conviction if such conviction was for a crime of violence, upon charges separately brought and tried under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States which, if committed in this state, would be a felony;
(IV) A crime of possession of a weapon by a previous offender alleged to have been committed in violation of section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), C.R.S.;
(V) Sexual assault, as described in section 18-3-402, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, sexual assault in the second degree, as described in section 18-3-403, as it existed prior to July 1, 2000, sexual assault on a child, as described in section 18-3-405, or sexual assault on a child by one in a position of trust, as described in section 18-3-405.3 in which the victim is fourteen years of age or younger and seven or more years younger than the accused.
(c) When a person has been convicted of a crime of violence or a crime of possession of a weapon by a previous offender, as described in section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), C.R.S., at the trial court level and such person is appealing such conviction or awaiting sentencing for such conviction and the court finds that the public would be placed in significant peril if the convicted person were released on bail.
(2) For purposes of this section, “crime of violence” shall have the same meaning as set forth in section 18-1.3-406 (2), C.R.S.
(3) In any capital case, the defendant may make a written motion for admission to bail upon the ground that the proof is not evident or that presumption is not great, and the court shall promptly conduct a hearing upon such motion. At such hearing, the burden shall be upon the people to establish that the proof is evident or that the presumption is great. The court may combine in a single hearing the questions as to whether the proof is evident or the presumption great with the determination of the existence of probable cause to believe that the defendant committed the crime charged.

C.R.S. 16-4-101

Connecticut

None specified – see state constitution.

Delaware

(a) A capital crime shall not be bailable, and a person so charged shall be held in custody without bail until the charge be withdrawn, reduced or dismissed or until the court shall otherwise order after a trial which results in less than a conviction of a capital crime or except as provided in subsection (b) of this section.
(b) The Superior Court may admit to bail a person charged with a capital crime if, after full inquiry, the Superior Court shall determine that there is good ground to doubt the truth of the accusation, and the burden of demonstrating such doubt shall be on the accused.

11 Del. C. § 2103

Washington, D.C.

(a) A person who is charged with murder in the first degree, murder in the second degree, or assault with intent to kill while armed shall be treated in accordance with the provisions of section 23-1321 unless the judicial officer has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, the person may be ordered detained. In any pretrial detention hearing under the provisions of this section, if the judicial officer finds that there is a substantial probability that the person has committed any of the foregoing offenses while armed with or having readily available a pistol, firearm, or imitation firearm, there shall be a rebuttable presumption that no condition or combination of conditions of release will reasonably assure the safety of any other person or the community.

D.C. Code § 23-1325

(a) The judicial officer shall order the detention of a person charged with an offense for a period of not more than 5 days, excluding Saturdays, Sundays, and holidays, and direct the attorney for the government to notify the appropriate court, probation or parole official, or local or state law enforcement official, if the judicial officer determines that the person charged with an offense:
(1) Was at the time the offense was committed, on:
(A) Release pending trial for a felony or misdemeanor under local, state, or federal law;
(B) Release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under local, state, or federal law; or
(C) Probation, parole or supervised release for an offense under local, state, or federal law; and
(2) May flee or pose a danger to any other person or the community or, when a hearing under § 23-1329(b) is requested, is likely to violate a condition of release. If the official fails or declines to take the person into custody during the 5-day period described in this subsection, the person shall be treated in accordance with other provisions of law governing release pending trial.
(b)
(1) The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in § 23-1321(c) will reasonably assure the appearance of the person as required and the safety of any other person and the community, upon oral motion of the attorney for the government, in a case that involves:
(A) A crime of violence, or a dangerous crime, as these terms are defined in § 23-1331;
(B) An offense under section 502 of the District of Columbia Theft and White Collar Crimes Act of 1982, effective December 1, 1982 (D.C. Law 4-164; § 22-722);
(C) A serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness or juror; or
(D) A serious risk that the person will flee.
(2) If, after a hearing pursuant to the provision of subsection (d) of this section, the judicial officer finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of the person as required, and the safety of any other person and the community, the judicial officer shall order that the person be detained before trial.

D.C. Code § 23-1322

Florida

(4) Pretrial detention. —
(a) As used in this subsection, “dangerous crime” means any of the following:
1. Arson;
2. Aggravated assault;
3. Aggravated battery;
4. Illegal use of explosives;
5. Child abuse or aggravated child abuse;
6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;
7. Aircraft piracy;
8. Kidnapping;
9. Homicide;
10. Manslaughter;
11. Sexual battery;
12. Robbery;
13. Carjacking;
14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority;
16. Burglary of a dwelling;
17. Stalking and aggravated stalking;
18. Act of domestic violence as defined in s. 741.28;
19. Home invasion robbery;
20. Act of terrorism as defined in s. 775.30;
21. Manufacturing any substances in violation of chapter 893;
22. Attempting or conspiring to commit any such crime; and
23. Human trafficking.

(b) No person charged with a dangerous crime shall be granted nonmonetary pretrial release at a first appearance hearing; however, the court shall retain the discretion to release an accused on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant such a release.

(c) The court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exist:

1. The defendant has previously violated conditions of release and that no further conditions of release are reasonably likely to assure the defendant’s appearance at subsequent proceedings;
2. The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process;
3. The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant’s appearance at subsequent criminal proceedings;
4. The defendant is charged with DUI manslaughter, as defined by s. 316.193, and that there is a substantial probability that the defendant committed the crime and that the defendant poses a threat of harm to the community; conditions that would support a finding by the court pursuant to this subparagraph that the defendant poses a threat of harm to the community include, but are not limited to, any of the following:
a. The defendant has previously been convicted of any crime under s. 316.193, or of any crime in any other state or territory of the United States that is substantially similar to any crime under s. 316.193;
b. The defendant was driving with a suspended driver license when the charged crime was committed; or
c. The defendant has previously been found guilty of, or has had adjudication of guilt withheld for, driving while the defendant’s driver license was suspended or revoked in violation of s. 322.34;
5. The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons;
6. The defendant was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed;
7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial; or
8.
a. The defendant has ever been sentenced pursuant to s. 775.082(9) or s. 775.084 as a prison releasee reoffender, habitual violent felony offender, three-time violent felony offender, or violent career criminal, or the state attorney files a notice seeking that the defendant be sentenced pursuant to s. 775.082(9) or s. 775.084, as a prison releasee reoffender, habitual violent felony offender, three-time violent felony offender, or violent career criminal;
b. There is a substantial probability that the defendant committed the offense; and
c. There are no conditions of release that can reasonably protect the community from risk of physical harm or ensure the presence of the accused at trial.

Fla. Stat. § 907.041

Georgia

No explicit statutorily defined detention net. §17-6-1 does the inverse of setting a detention net and prohibits the refusal to set bail in misdemeanor cases. See Constantino v. Warren, 285 Ga. 851 (2009) (upholding denial of bail for those charged with nonviolent felony, noting that “only defendants charged with misdemeanors are entitled to bail as a matter of right”).

Hawaii

(a) For purposes of this section, “serious crime” means murder or attempted murder in the first degree, murder or attempted murder in the second degree, or a class A or B felony, except forgery in the first degree and failing to render aid under section 291C-12, and “bail” includes release on one’s own recognizance, supervised release, and conditional release.
(b) Any person charged with a criminal offense shall be bailable by sufficient sureties; provided that bail may be denied where the charge is for a serious crime, and:
(1) There is a serious risk that the person will flee;
(2) There is a serious risk that the person will obstruct or attempt to obstruct justice, or therefore, injure, or intimidate, or attempt to thereafter, injure, or intimidate, a prospective witness or juror;
(3) There is a serious risk that the person poses a danger to any person or the community; or
(4) There is a serious risk that the person will engage in illegal activity.
(c) Under subsection (b)(1) a rebuttable presumption arises that there is a serious risk that the person will flee or will not appear as directed by the court where the person is charged with a criminal offense punishable by imprisonment for life without possibility of parole. For purposes of subsection (b)(3) and (4) a rebuttable presumption arises that the person poses a serious danger to any person or community or will engage in illegal activity where the court determines that:
(1) The defendant has been previously convicted of a serious crime involving violence against a person within the ten-year period preceding the date of the charge against the defendant;
(2) The defendant is already on bail on a felony charge involving violence against a person; or
(3) The defendant is on probation or parole for a serious crime involving violence to a person.
(d) If, after a hearing the court finds that no condition or combination of conditions will reasonably assure the appearance of the person when required or the safety of any other person or community, bail may be denied.

HRS § 804-3

Idaho

Any person charged with a crime who is not released on his own recognizance is entitled to bail, as a matter of right, before a plea or verdict of guilty, except when the offense charged is punishable by death and the proof is evident or the presumption is great. The setting of bail on a bench warrant following a failure by a defendant to appear before the court as ordered and without sufficient excuse shall be determined under the provisions of section 19-2915, Idaho Code. In the discretion of the court, bail may be allowed in the following cases:
(1) After the defendant is found guilty or pleads guilty and before sentencing;
(2) While an appeal is pending from a judgment of conviction, an order withholding judgment or an order imposing sentence, except that a court shall not allow bail when the defendant has been sentenced to death or life imprisonment;
(3) Upon a charge of a violation of the terms of probation; and
(4) Upon a finding of a violation of the conditions of release pursuant to section 19-2919, Idaho Code.

Idaho Code § 19-2903

(1) The legislature finds and declares that:
(a) Bail, in criminal cases, is a constitutional right subject to certain limitations;
(b) It is necessary to establish a statewide process to uniformly implement this right and the limitations.
(2) The purpose of this chapter is to provide a uniform and comprehensive statewide process for the administration of bail in criminal cases in order to:
(a) Ensure the appearance of defendants before the courts;
(b) Protect the right of defendants to bail, as constitutionally provided; and
(c) Ensure the protection and safety of victims, witnesses and the public.

Idaho Code § 19-2902

Illinois

(a) All persons shall be bailable before conviction, except the following offenses where the proof is evident or the presumption great that the defendant is guilty of the offense: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, where the court after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person or persons; or stalking or aggravated stalking, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of the alleged victim of the offense and denial of bail is necessary to prevent fulfillment of the threat upon which the charge is based; or unlawful use of weapons in violation of item (4) of subsection (a) of Section 24-1 of the Criminal Code of 1961 or the Criminal Code of 2012 [720 ILCS 5/24-1] when that offense occurred in a school or in any conveyance owned, leased, or contracted by a school to transport students to or from school or a school-related activity, or on any public way within 1,000 feet of real property comprising any school, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat; or making a terrorist threat in violation of Section 29D-20 of the Criminal Code of 1961 or the Criminal Code of 2012 [720 ILCS 5/29D-20] or an attempt to commit the offense of making a terrorist threat, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat.

(b) A person seeking release on bail who is charged with a capital offense or an offense for which a sentence of life imprisonment may be imposed shall not be bailable until a hearing is held wherein such person has the burden of demonstrating that the proof of his guilt is not evident and the presumption is not great…

725 ILCS 5/110-4

Indiana

Murder is not bailable if the state proves by a preponderance of the evidence that the proof is evident or the presumption strong. In all other cases, offenses are bailable.

Burns Ind. Code Ann. § 35-33-8-2

Iowa

All defendants are bailable both before and after conviction, by sufficient surety, or subject to release upon condition or on their own recognizance, except that the following defendants shall not be admitted to bail:
1. A defendant awaiting judgment of conviction and sentencing following either a plea or verdict of guilty of a class “A” felony; forcible felony as defined in section 702.11; any class “B” felony included in section 462A.14 or 707.6A; any felony included in section 124.401, subsection 1, paragraph “a” or “b”; a second or subsequent offense under section 124.401, subsection 1, paragraph “c”; any felony punishable under section 902.9, subsection 1, paragraph “a”; any public offense committed while detained pursuant to section 229A.5; or any public offense committed while subject to an order of commitment pursuant to chapter 229A.

3. Notwithstanding subsections 1 and 2, a defendant awaiting judgment of conviction and sentencing following either a plea or verdict of guilty of, or appealing a conviction of, any felony offense included in section 708.11, subsection 3, or a felony offense under chapter 124 not provided for in subsection 1 or 2 is presumed to be ineligible to be admitted to bail unless the court determines that such release reasonably will not result in the person failing to appear as required and will not jeopardize the personal safety of another person or persons.

Iowa Code § 811.1

Kansas

None specified – see state constitution.

Kentucky

(1) All persons shall be bailable before conviction, except when death is a possible punishment for the offense or offenses charged and the proof is evident or the presumption is great that the defendant is guilty.

(2) All defendants charged with bailable offenses shall be considered for pre-trial release without making formal application except when a capital offense is charged. A person charged with a capital offense must make an application for pre-trial release…

Ky. RCr Rule 4.02

Louisiana

A. Except as provided in this Article and Article 313, a person in custody who is charged with the commission of an offense is entitled to bail before conviction.

B. A person released on a previously posted bail undertaking for (1) a crime of violence as defined by R.S. 14:2(B) which carries a minimum mandatory sentence of imprisonment upon conviction or (2) the production, manufacture, distribution, or dispensing or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance as defined by the Louisiana Uniform Controlled Dangerous Substances Law, shall not be readmitted to bail when the person previously failed to appear and a warrant for arrest was issued and not recalled or the previous bail undertaking has been revoked or forfeited. If a person voluntarily appears without confinement by a law enforcement officer or bail recovery agent following a motion to revoke bail or issuance of an arrest warrant for failure to appear but prior to revocation or forfeiture, then he may be released only under one of the following circumstances:

(1) After a contradictory hearing, a person may be released on the previously posted bail undertaking if the motion to revoke bail is rescinded or the arrest warrant is recalled and the surety is present or represented at the hearing and gives written consent. Previous instances of revocation and forfeiture in unrelated cases are admissible at the hearing. This relief is available only once.

(2) A person may be released on a new bail undertaking without a contradictory hearing only on bail with a commercial surety and in an amount higher than the original bail.
C. A defendant who has been surrendered under the provisions of Article 331, or has been rearrested under the provisions of Article 332, is entitled to bail in accordance with this Code…

La. C.Cr.P. Art. 312

A.
(1) This Paragraph may be cited as and referred to as “Gwen’s Law”.

(2) A contradictory bail hearing, as provided for in this Paragraph, may be held prior to setting bail for a person in custody who is charged with domestic abuse battery, violation of protective orders, stalking, or any felony offense involving the use or threatened use of force or a deadly weapon upon the defendant’s family member, as defined in R.S. 46:2132 or upon the defendant’s household member as defined in R.S. 14:35.3, or upon the defendant’s dating partner, as defined in R.S. 46:2151. If the court orders a contradictory hearing, the hearing shall be held within five days from the date of determination of probable cause, exclusive of weekends and legal holidays. At the contradictory hearing, the court shall determine the conditions of bail or whether the defendant should be held without bail pending trial. If the court decides not to hold a contradictory hearing, it shall notify the prosecuting attorney prior to setting bail.

D.
(1) A person charged with the commission of a capital offense shall not be admitted to bail if the proof is evident and the presumption great that he is guilty of the capital offense. When a person charged with the commission of a capital offense makes an application for admission to bail, the judge shall hold a hearing contradictorily with the state.

La. C.Cr.P. Art. 313

Maine

3. Crime bailable as of right preconviction. “Crime bailable as of right preconviction” means a crime for which, under the Constitution of Maine, Article I, Section 10, a defendant has an absolute right to have bail set at the preconviction stage of any criminal proceeding.

4. Crime bailable only as a matter of discretion preconviction. “Crime bailable only as a matter of discretion preconviction” means a formerly capital offense for which, pursuant to a Harnish bail proceeding, a capital defendant’s conditional constitutional right to have bail set at the preconviction stage of a criminal proceeding has been extinguished.

15 M.R.S. § 1003

Maryland

(a) A District Court commissioner may not authorize pretrial release for a defendant charged with escaping from a correctional facility or any other place of confinement in the State.
(b)
(1) A District Court commissioner may not authorize the pretrial release of a defendant charged as a drug kingpin under § 5-613 of the Criminal Law Article.
(2) A judge may authorize the pretrial release of a defendant charged as a drug kingpin on suitable bail and on any other conditions that will reasonably ensure that the defendant will not flee or pose a danger to another person or the community.
(3) There is a rebuttable presumption that, if released, a defendant charged as a drug kingpin will flee and pose a danger to another person or the community.
(c)
(1) A District Court commissioner may not authorize the pretrial release of a defendant charged with a crime of violence if the defendant has been previously convicted:
(i) in this State of a crime of violence;
(ii) in any other jurisdiction of a crime that would be a crime of violence if committed in this State; or
(iii) of an offense listed in subsection (f)(1) of this section.
(2)
(i) A judge may authorize the pretrial release of a defendant described in paragraph (1) of this subsection on:
1. suitable bail;
2. any other conditions that will reasonably ensure that the defendant will not flee or pose a danger to another person or the community; or
3. both bail and other conditions described under item 2 of this subparagraph.
(ii) When a defendant described in paragraph (1) of this subsection is presented to the court under Maryland Rule 4-216(f), the judge shall order the continued detention of the defendant if the judge determines that neither suitable bail nor any condition or combination of conditions will reasonably ensure that the defendant will not flee or pose a danger to another person or the community before the trial.
(3) There is a rebuttable presumption that a defendant described in paragraph (1) of this subsection will flee and pose a danger to another person or the community.
(d)
(1) A District Court commissioner may not authorize the pretrial release of a defendant charged with committing one of the following crimes while the defendant was released on bail or personal recognizance for a pending prior charge of committing one of the following crimes:
(i) aiding, counseling, or procuring arson in the first degree under § 6-102 of the Criminal Law Article;
(ii) arson in the second degree or attempting, aiding, counseling, or procuring arson in the second degree under § 6-103 of the Criminal Law Article;
(iii) burglary in the first degree under § 6-202 of the Criminal Law Article;
(iv) burglary in the second degree under § 6-203 of the Criminal Law Article;
(v) burglary in the third degree under § 6-204 of the Criminal Law Article;
(vi) causing abuse to a child under § 3-601 or § 3-602 of the Criminal Law Article;
(vii) a crime that relates to a destructive device under § 4-503 of the Criminal Law Article;
(viii) a crime that relates to a controlled dangerous substance under §§ 5-602 through 5-609 or § 5-612 or § 5-613 of the Criminal Law Article;
(ix) manslaughter by vehicle or vessel under § 2-209 of the Criminal Law Article; and
(x) a crime of violence.
(2) A defendant under this subsection remains ineligible to give bail or be released on recognizance on the subsequent charge until all prior charges have finally been determined by the courts.
(3) A judge may authorize the pretrial release of a defendant described in paragraph (1) of this subsection on suitable bail and on any other conditions that will reasonably ensure that the defendant will not flee or pose a danger to another person or the community.
(4) There is a rebuttable presumption that a defendant described in paragraph (1) of this subsection will flee and pose a danger to another person or the community if released before final determination of the prior charge.
(e)
(1) A District Court commissioner may not authorize the pretrial release of a defendant charged with violating:
(i) the provisions of a temporary protective order described in § 4-505(a)(2)(i) of the Family Law Article or the provisions of a protective order described in § 4-506(d)(1) of the Family Law Article that order the defendant to refrain from abusing or threatening to abuse a person eligible for relief; or
(ii) the provisions of an order for protection, as defined in § 4-508.1 of the Family Law Article, issued by a court of another state or of a Native American tribe that order the defendant to refrain from abusing or threatening to abuse a person eligible for relief, if the order is enforceable under § 4-508.1 of the Family Law Article.
(2) A judge may allow the pretrial release of a defendant described in paragraph (1) of this subsection on:
(i) suitable bail;
(ii) any other conditions that will reasonably ensure that the defendant will not flee or pose a danger to another person or the community; or
(iii) both bail and other conditions described under item (ii) of this paragraph.
(3) When a defendant described in paragraph (1) of this subsection is presented to the court under Maryland Rule 4-216(f), the judge shall order the continued detention of the defendant if the judge determines that neither suitable bail nor any condition or combination of conditions will reasonably ensure that the defendant will not flee or pose a danger to another person or the community before the trial.
(f)
(1) A District Court commissioner may not authorize the pretrial release of a defendant charged with one of the following crimes if the defendant has previously been convicted of a crime of violence or one of the following crimes:
(i) wearing, carrying, or transporting a handgun under § 4-203 of the Criminal Law Article;
(ii) use of a handgun or an antique firearm in commission of a crime under § 4-204 of the Criminal Law Article;
(iii) violating prohibitions relating to assault weapons under § 4-303 of the Criminal Law Article;
(iv) use of a machine gun in a crime of violence under § 4-404 of the Criminal Law Article;
(v) use of a machine gun for an aggressive purpose under § 4-405 of the Criminal Law Article;
(vi) use of a weapon as a separate crime under § 5-621 of the Criminal Law Article;
(vii) possession of a regulated firearm under § 5-133 of the Public Safety Article;
(viii) transporting a regulated firearm for unlawful sale or trafficking under § 5-140 of the Public Safety Article; or
(ix) possession of a rifle or shotgun by a person with a mental disorder under § 5-205 of the Public Safety Article.
(2)
(i) A judge may authorize the pretrial release of a defendant described in paragraph (1) of this subsection on:
1. suitable bail;
2. any other conditions that will reasonably ensure that the defendant will not flee or pose a danger to another person or the community; or
3. both bail and other conditions described under item 2 of this subparagraph.
(ii) When a defendant described in paragraph (1) of this subsection is presented to the court under Maryland Rule 4-216(f), the judge shall order the continued detention of the defendant if the judge determines that neither suitable bail nor any condition or combination of conditions will reasonably ensure that the defendant will not flee or pose a danger to another person or the community before the trial.
(3) There is a rebuttable presumption that a defendant described in paragraph (1) of this subsection will flee and pose a danger to another person or the community.
(g)
(1) A District Court commissioner may not authorize the pretrial release of a defendant who:
(i) is registered, or the commissioner knows is required to register, under Title 11, Subtitle 7 of this article; or
(ii) is a sex offender who is required to register by another jurisdiction, a federal, military, or tribal court, or a foreign government.
(2)
(i) A judge may authorize the pretrial release of a defendant described in paragraph (1) of this subsection on:
1. suitable bail;
2. any other conditions that will reasonably ensure that the defendant will not flee or pose a danger to another person or the community; or
3. both bail and other conditions described under item 2 of this subparagraph.
(ii) When a defendant described in paragraph (1) of this subsection is presented to the court under Maryland Rule 4-216(f), the judge shall order the continued detention of the defendant if the judge determines that neither suitable bail nor any condition or combination of conditions will reasonably ensure that the defendant will not flee or pose a danger to another person or the community before the trial.
(3) There is a rebuttable presumption that a defendant described in paragraph (1) of this subsection will flee and pose a danger to another person or the community.

Md. Criminal Procedure Code Ann. § 5-202

Massachusetts

(1) The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use or threatened use of physical force against the person of another or any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result, including the crimes of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to section 18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209 A or section 15 or 20 of chapter 209C, or arrested and charged with a misdemeanor or felony involving abuse as defined in section 1 of said chapter 209A or while an order of protection issued under said chapter 209A was in effect against such person, an offense for which a mandatory minimum term of 3 years or more is prescribed in chapter 94C, arrested and charged with a violation of section 13B of chapter 268 or a charge of a third or subsequent violation of section 24 of chapter 90 within 10 years of the previous conviction for such violation, or convicted of a violent crime as defined in said section 121 of said chapter 140 for which a term of imprisonment was served and arrested and charged with a second or subsequent offense of felony possession of a weapon or machine gun as defined in section 121 of chapter 140, or arrested and charged with a violation of paragraph (a), (c) or (m) of section 10 of chapter 269; provided, however, that the commonwealth may not move for an order of detention under this section based on possession of a large capacity feeding device without simultaneous possession of a large capacity weapon; or arrested and charged with a violation of section 10G of said chapter 269, section 112 of chapter 266 or section 77 or 94 of chapter 272.

Ch. 276, § 58A

A justice or a clerk or assistant clerk of the district court, a bail commissioner or master in chancery, in accordance with the applicable provisions of section fifty-seven, shall, when a person is held under arrest or committed either with or without a warrant for an offense other than an offense punishable by death, or, upon the motion of the commonwealth, for an offense enumerated in section fifty-eight A or for any offense on which a warrant of arrest has been issued by the superior court, hold a hearing in which the defendant and his counsel, if any, may participate and inquire into the case and shall admit such person to bail on his personal recognizance without surety unless said justice, clerk or assistant clerk, bail commissioner or master in chancery determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person before the court. Except in cases where the person is determined to pose a danger to the safety of any other person or the community under section 58A, bail shall be set in an amount no higher than what would reasonably assure the appearance of the person before the court after taking into account the person’s financial resources; provided, however, that a higher than affordable bail may be set if neither alternative nonfinancial conditions nor a bail amount which the person could likely afford would adequately assure the person’s appearance before the court.

ch. 276, § 58 

Michigan

No person charged with treason or murder shall be admitted to bail if the proof of his guilt is evident or the presumption great.

MCLS § 765.5

Minnesota

None specified – see state constitution.

Mississippi

If a person be dangerously wounded the party accused shall be committed to prison until it be known whether the person wounded will recover or not, unless it appear to the court of inquiry that the case, in any event, would not amount to murder; in which case, or in the event that the person wounded do or will recover, the accused shall be dealt with as in other cases.

Miss. Code Ann. § 99-5-33

Any person having been twice tried on an indictment charging a capital offense, wherein each trial has resulted in a failure of the jury to agree upon his guilt or innocence, shall be entitled to bail in an amount to be set by the court.

Miss. Code Ann. § 99-5-35

Missouri

Notwithstanding the provisions of section 20 of article I of the Missouri Constitution to the contrary, upon a showing that the defendant poses a danger to a crime victim, the community, or any other person, the court may use such information in determining the appropriate amount of bail, to increase the amount of bail, to deny bail entirely or impose any special conditions which the defendant and surety shall guarantee.

§ 544.457 R.S.Mo.

1. Upon a showing by the state that a defendant poses a danger to a crime victim, witness, or the community, the court may deny bail to a defendant or impose such conditions as it deems appropriate to protect a crime victim, witness or the community…

§ 544.676 R.S.Mo.

1. If the offense is not bailable, if the individual is not granted electronic monitoring, or if the individual does not meet the conditions for release, as provided in section 544.455, the individual shall be committed to the jail of the county in which the same is to be tried, there to remain until such individual be discharged by due course of law.

2. There shall be a presumption that releasing the person under any conditions as provided by section 544.455 shall not reasonably assure the appearance of the person as required if the circuit judge or associate circuit judge reasonably believes that the person is an alien unlawfully present in the United States. If such presumption exists, the person shall be committed to the jail, as provided in subsection 1 of this section, until such person provides verification of his or her lawful presence in the United States to rebut such presumption. If the person adequately proves his or her lawful presence, the circuit judge or associate circuit judge shall review the issue of release, as provided under section 544.455, without regard to previous issues concerning whether the person is lawfully present in the United States. If the person cannot prove his or her lawful presence, the person shall continue to be committed to the jail and remain until discharged by due course of law.

§ 544.470 R.S.Mo.

Note: Held Unconstitutional by Lopez-Matias v. State Mo.Dec. 08, 2016

Montana

(1) All persons shall be bailable before conviction, except when death is a possible punishment for the offense charged and the proof is evident or the presumption great that the person is guilty of the offense charged…

46-9-102, MCA

Nebraska

None specified – see state constitution.

Nevada

1. Except as otherwise provided in this section, a person arrested for an offense other than murder of the first degree must be admitted to bail.
2. A person arrested for a felony who has been released on probation or parole for a different offense must not be admitted to bail unless:
(a) A court issues an order directing that the person be admitted to bail;
(b) The State Board of Parole Commissioners directs the detention facility to admit the person to bail; or
(c) The Division of Parole and Probation of the Department of Public Safety directs the detention facility to admit the person to bail.
3. A person arrested for a felony whose sentence has been suspended pursuant to NRS 4.373 or 5.055 for a different offense or who has been sentenced to a term of residential confinement pursuant to NRS 4.3762 or 5.076 for a different offense must not be admitted to bail unless:
(a) A court issues an order directing that the person be admitted to bail; or
(b) A department of alternative sentencing directs the detention facility to admit the person to bail.
4. A person arrested for murder of the first degree may be admitted to bail unless the proof is evident or the presumption great by any competent court or magistrate authorized by law to do so in the exercise of discretion, giving due weight to the evidence and to the nature and circumstances of the offense…

Nev. Rev. Stat. Ann. § 178.484

New Hampshire

Except as provided in RSA 597:1-a [post conviction], 597:1-c, or 597:1-d, all persons arrested for an offense shall be eligible to be released pending judicial proceedings upon compliance with the provisions of this chapter.

RSA 597:1

Any person arrested for an offense punishable by up to life in prison, where the proof is evident or the presumption great, shall not be allowed bail.

RSA 597:1-c

I. If there is a judicial finding of probable cause to believe that a person has committed a violation of RSA 630, RSA 631, RSA 632-A:2-4 or RSA 633:1-3 from an arrest warrant affidavit and the person is on probation or parole for a conviction of a violent crime listed in RSA 651:4-a or a substantially similar crime in any state or federal court in this or any other state, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States, it is presumed that release on bail and imposition of any condition or set of conditions listed in RSA 597:2 will not reasonably assure the appearance of the person as required and will endanger the safety of the person or of any other person or the community.

II. The court shall not release such person on bail unless the court finds by a preponderance of the evidence that some condition or set of conditions found in RSA 597:2 will assure the person's appearance and assure that release will not pose a danger to the safety of the person or of any person or the community.

RSA 597:1-d

See also 597:2

New Jersey

a. A prosecutor may file a motion with the court at any time, including any time before or after an eligible defendant’s release pursuant to section 3 of P.L.2014, c.31 (C.2A:162-17), seeking the pretrial detention of an eligible defendant for:
(1) any crime of the first or second degree enumerated under subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2);
(2) any crime for which the eligible defendant would be subject to an ordinary or extended term of life imprisonment;
(3) any crime if the eligible defendant has been convicted of two or more offenses under paragraph (1) or (2) of this subsection;
(4) any crime enumerated under paragraph (2) of subsection b. of section 2 of P.L.1994, c.133 (C.2C:7-2) or crime involving human trafficking pursuant to section 1 of P.L.2005, c.77 (C.2C:13-8) or P.L.2013, c.51 (C.52:17B-237 et al.) when the victim is a minor, or the crime of endangering the welfare of a child under N.J.S.2C:24-4;
(5) any crime enumerated under subsection c. of N.J.S.2C:43-6;
(6) any crime or offense involving domestic violence as defined in subsection a. of section 3 of P.L.1991, c.261 (C.2C:25-19); or
(7) any other crime for which the prosecutor believes there is a serious risk that:
(a) the eligible defendant will not appear in court as required;
(b) the eligible defendant will pose a danger to any other person or the community; or
(c) the eligible defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror.

N.J. Stat. § 2A:162-19

New Mexico

A. Scope. Notwithstanding the right to pretrial release under Article II, Section 13 of the New Mexico Constitution and Rule 5-401 NMRA, under Article II, Section 13 and this rule, the district court may order the detention pending trial of a defendant charged with a felony offense if the prosecutor files a motion titled “Expedited Motion for Pretrial Detention” and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community.

5-409 New Mexico Rules of Criminal Procedure for District Courts

G. Pretrial detention.
(1). If the prosecutor files a motion for pretrial detention, the court shall follow the procedures set forth in Rule 5-409 NMRA.
(2). The court may schedule a detention hearing within the time limits set forth in Rule 5-409(F)(1) NMRA and give notice to the prosecutor and defendant when
(a). The defendant is charged with a felony offense
(i). involving the use of a firearm;
(ii). involving the use of a deadly weapon resulting in great bodily harm or death,
(iii). which authorizes a sentence of life in prison without the possibility of parole, or
(b). A public safety assessment tool flags potential new violent criminal activity for the defendant.
(3). If the prosecutor does not file an expedited motion for pretrial detention by the date scheduled for the detention hearing, the court shall treat the hearing as a pretrial release hearing under this rule and issue an order setting conditions of release.

5-401 New Mexico Rules of Criminal Procedure for District Courts

New York

4. Where the principal stands charged with a qualifying offense, the court, unless otherwise prohibited by law, may in its discretion release the principal pending trial on the principal’s own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, the court may commit the principal to the custody of the sheriff. A principal stands charged with a qualifying offense for the purposes of this subdivision when he or she stands charged with:
(a) a felony enumerated in section 70.02 of the penal law, other than robbery in the second degree as defined in subdivision one of section 160.10 of the penal law, provided, however, that burglary in the second degree as defined in subdivision two of section 140.25 of the penal law shall be a qualifying offense only where the defendant is charged with entering the living area of the dwelling;
(b) a crime involving witness intimidation under section 215.15 of the penal law;
(c) a crime involving witness tampering under section 215.11, 215.12 or 215.13 of the penal law;
(d) a class A felony defined in the penal law, provided that for class A felonies under article two hundred twenty of the penal law, only class A-I felonies shall be a qualifying offense;
(e) a sex trafficking offense defined in section 230.34 or 230.34-a of the penal law, or a felony sex offense defined in section 70.80 of the penal law, or a crime involving incest as defined in section 255.25, 255.26 or 255.27 of such law, or a misdemeanor defined in article one hundred thirty of such law;
(f) conspiracy in the second degree as defined in section 105.15 of the penal law, where the underlying allegation of such charge is that the defendant conspired to commit a class A felony defined in article one hundred twenty-five of the penal law;
(g) money laundering in support of terrorism in the first degree as defined in section 470.24 of the penal law; money laundering in support of terrorism in the second degree as defined in section 470.23 of the penal law; money laundering in support of terrorism in the third degree as defined in section 470.22 of the penal law; money laundering in support of terrorism in the fourth degree as defined in section 470.21 of the penal law; or a felony crime of terrorism as defined in article four hundred ninety of the penal law, other than the crime defined in section 490.20 of such law;
(h) criminal contempt in the second degree as defined in subdivision three of section 215.50 of the penal law, criminal contempt in the first degree as defined in subdivision (b), (c) or (d) of section 215.51 of the penal law or aggravated criminal contempt as defined in section 215.52 of the penal law, and the underlying allegation of such charge of criminal contempt in the second degree, criminal contempt in the first degree or aggravated criminal contempt is that the defendant violated a duly served order of protection where the protected party is a member of the defendant’s same family or household as defined in subdivision one of section 530.11 of this title;
(i) facilitating a sexual performance by a child with a controlled substance or alcohol as defined in section 263.30 of the penal law, use of a child in a sexual performance as defined in section 263.05 of the penal law or luring a child as defined in subdivision one of section 120.70 of the penal law, promoting an obscene sexual performance by a child as defined in section 263.10 of the penal law or promoting a sexual performance by a child as defined in section 263.15 of the penal law;
(j) any crime that is alleged to have caused the death of another person;
(k) criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, strangulation in the second degree as defined in section 121.12 of the penal law or unlawful imprisonment in the first degree as defined in section 135.10 of the penal law, and is alleged to have committed the offense against a member of the defendant’s same family or household as defined in subdivision one of section 530.11 of this title;
(l) aggravated vehicular assault as defined in section 120.04-a of the penal law or vehicular assault in the first degree as defined in section 120.04 of the penal law;
(m) assault in the third degree as defined in section 120.00 of the penal law or arson in the third degree as defined in section 150.10 of the penal law, when such crime is charged as a hate crime as defined in section 485.05 of the penal law;
(n) aggravated assault upon a person less than eleven years old as defined in section 120.12 of the penal law or criminal possession of a weapon on school grounds as defined in section 265.01-a of the penal law;
(o) grand larceny in the first degree as defined in section 155.42 of the penal law, enterprise corruption as defined in section 460.20 of the penal law, or money laundering in the first degree as defined in section 470.20 of the penal law;
(p) failure to register as a sex offender pursuant to section one hundred sixty-eight-t of the correction law or endangering the welfare of a child as defined in subdivision one of section 260.10 of the penal law, where the defendant is required to maintain registration under article six-C of the correction law and designated a level three offender pursuant to subdivision six of section one hundred sixty-eight-l of the correction law;
(q) a crime involving bail jumping under section 215.55, 215.56 or 215.57 of the penal law, or a crime involving escaping from custody under section 205.05, 205.10 or 205.15 of the penal law;
(r) any felony offense committed by the principal while serving a sentence of probation or while released to post release supervision;
(s) a felony, where the defendant qualifies for sentencing on such charge as a persistent felony offender pursuant to section 70.10 of the penal law;
(t) any felony or class A misdemeanor involving harm to an identifiable person or property, or any charge of criminal possession of a firearm as defined in section 265.01-b of the penal law, where such charge arose from conduct occurring while the defendant was released on his or her own recognizance, released under conditions, or had yet to be arraigned after the issuance of a desk appearance ticket for a separate felony or class A misdemeanor involving harm to an identifiable person or property, or any charge of criminal possession of a firearm as defined in section 265.01-b of the penal law, provided, however, that the prosecutor must show reasonable cause to believe that the defendant committed the instant crime and any underlying crime. For the purposes of this subparagraph, any of the underlying crimes need not be a qualifying offense as defined in this subdivision. For the purposes of this paragraph, “harm to an identifiable person or property” shall include but not be limited to theft of or damage to property. However, based upon a review of the facts alleged in the accusatory instrument, if the court determines that such theft is negligible and does not appear to be in furtherance of other criminal activity, the principal shall be released on his or her own recognizance or under appropriate non-monetary conditions; or
(u) criminal possession of a weapon in the third degree as defined in subdivision three of section 265.02 of the penal law or criminal sale of a firearm to a minor as defined in section 265.16 of the penal law.

NY Crim. Proc. Law § 510.10

North Carolina

(a) A defendant charged with any crime, whether capital or noncapital, who is alleged to have committed this crime while still residing in or subsequent to his escape or during an unauthorized absence from involuntary commitment in a mental health facility designated or licensed by the Department of Health and Human Services, and whose commitment is determined to be still valid by the judge or judicial officer authorized to determine pretrial release to be valid, has no right to pretrial release. In lieu of pretrial release, however, the individual shall be returned to the treatment facility in which he was residing at the time of the alleged crime or from which he escaped or absented himself for continuation of his treatment pending the additional proceedings on the criminal offense.
(b) A defendant charged with a noncapital offense must have conditions of pretrial release determined, in accordance with G.S. 15A-534.
(c) A judge may determine in his discretion whether a defendant charged with a capital offense may be released before trial. If he determines release is warranted, the judge must authorize release of the defendant in accordance with G.S. 15A-534…

N.C. Gen. Stat. § 15A-533

North Dakota

None specified – see state constitution.

Ohio

(A) On the motion of the prosecuting attorney or on the judge’s own motion, the judge shall hold a hearing to determine whether an accused person charged with aggravated murder when it is not a capital offense, murder, a felony of the first or second degree, a violation of section 2903.06 of the Revised Code, a violation of section 2903.211 of the Revised Code that is a felony, or a felony OVI offense shall be denied bail.

Ohio Rev. Code Ann. 2937.222

Oklahoma

A. Except as otherwise provided by law, bail, by sufficient sureties, shall be admitted upon all arrests in criminal cases where the offense is not punishable by death and in such cases it may be taken by any of the persons or courts authorized by law to arrest, to imprison offenders or to perform pretrial services, or by the clerk of the district court or his or her deputy, or by the judge of such courts.
B. In criminal cases where the defendant is currently an escaped prisoner from the Department of Corrections, the defendant must be processed back into the Department of Corrections prior to bail being set on new criminal charges.
C. All persons shall be bailable by sufficient sureties, except that bail may be denied for:
1. Capital offenses when the proof of guilt is evident, or the presumption thereof is great;
2. Violent offenses;
3. Offenses where the maximum sentence may be life imprisonment or life imprisonment without parole;
4. Felony offenses where the person charged with the offense has been convicted of two or more felony offenses arising out of different transactions; and
5. Controlled dangerous substances offenses where the maximum sentence may be at least ten (10) years’ imprisonment.
On all offenses specified in paragraphs 2 through 5 of this subsection, the proof of guilt must be evident, or the presumption must be great, and it must be on the grounds that no condition of release would assure the safety of the community or any person…

22 Okl. St. § 1101

Bail, by sufficient sureties, may be admitted upon all arrests in criminal cases where the punishment may be death, unless the proof is evident or the presumption great…

Okla. Stat. tit. 22, § 1102

Oregon

(1) Except as provided in subsections (2) and (4) of this section, a defendant shall be released in accordance with ORS 135.230 to 135.290.
(2)
(a) When the defendant is charged with murder, aggravated murder or treason, release shall be denied when the proof is evident or the presumption strong that the person is guilty.
(b) When the defendant is charged with murder or aggravated murder and the proof is not evident nor the presumption strong that the defendant is guilty, the court shall determine the issue of release as provided in subsection (4) of this section. In determining the issue of release under subsection (4) of this section, the court may consider any evidence used in making the determination required by this subsection.
(3) The magistrate may conduct such hearing as the magistrate considers necessary to determine whether, under subsection (2) of this section, the proof is evident or the presumption strong that the person is guilty.
(4)
(a) When the defendant is charged with a violent felony, release shall be denied if the court finds:
(A) Except when the defendant is charged by indictment, that there is probable cause to believe that the defendant committed the crime; and
(B) By clear and convincing evidence, that there is a danger of physical injury or sexual victimization to the victim or members of the public by the defendant while on release.

(f) When a defendant who has been released violates a condition of release and the violation:
(A) Constitutes a new criminal offense, the court shall cause the defendant to be taken back into custody and shall order the defendant held pending trial without release.
(B) Does not constitute a new criminal offense, the court may order the defendant to be taken back into custody and may order the defendant held pending trial or may make a new release decision .
(5) For purposes of this section, “violent felony” means a felony offense in which there was an actual or threatened serious physical injury to the victim, or a felony sexual offense.

Or. Rev. Stat. Ann. § 135.240

Pennsylvania

All prisoners shall be bailable by sufficient sureties, unless:
(1) for capital offenses or for offenses for which the maximum sentence is life imprisonment; or
(2) no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.

42 Pa. Cons. Stat. Ann. § 5701

Rhode Island

None specified – see state constitution.

South Carolina

(A) Magistrates may admit to bail a person charged with an offense, the punishment of which is not death or imprisonment for life; provided, however, with respect to violent offenses as defined by the General Assembly pursuant to Section 15, Article I of the Constitution of South Carolina, 1895, magistrates may deny bail giving due weight to the evidence and to the nature and circumstances of the event, including, but not limited to, any charges pending against the person requesting bail. “Violent offenses” as used in this section means the offenses contained in Section 16-1-60. If a person under lawful arrest on a charge not bailable is brought before a magistrate, the magistrate shall commit the person to jail. If the offense charged is bailable, the magistrate shall take recognizance with sufficient surety, if it is offered, in default whereof the person must be incarcerated.

S.C. Code Ann. § 22-5-510

South Dakota

None specified – see state constitution.

Tennessee

Before trial, all defendants shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great. After conviction, defendants are bailable as provided by § 40-11-113, § 40-11-143 or both.

Tenn. Code Ann. § 40-11-102

Texas

…(b) Except as otherwise provided by Subsection (d), a person who commits an offense under Section 25.07, Penal Code, related to a violation of a condition of bond set in a family violence case and whose bail in the case under Section 25.07, Penal Code, or in the family violence case is revoked or forfeited for a violation of a condition of bond may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate determines by a preponderance of the evidence that the person violated a condition of bond related to:
(1) the safety of the victim of the offense under Section 25.07, Penal Code, or the family violence case, as applicable; or
(2) the safety of the community.
(c) Except as otherwise provided by Subsection (d), a person who commits an offense under Section 25.07, Penal Code, other than an offense related to a violation of a condition of bond set in a family violence case, may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate determines by a preponderance of the evidence that the person committed the offense.
(d) A person who commits an offense under Section 25.07(a)(3), Penal Code, may be held without bail under Subsection (b) or (c), as applicable, only if following a hearing the judge or magistrate determines by a preponderance of the evidence that the person went to or near the place described in the order or condition of bond with the intent to commit or threaten to commit:
(1) family violence; or
(2) an act in furtherance of an offense under Section 42.072, Penal Code…

Tex. Code Crim. Proc. Art. 17.152

(a) This article applies to a defendant charged with a felony offense under any of the following provisions of the Penal Code, if committed against a child younger than 14 years of age:
(1) Chapter 21 (Sexual Offenses);
(2) Section 25.02 (Prohibited Sexual Conduct);
(3) Section 43.25 (Sexual Performance by a Child);
(4) Section 20A.02 (Trafficking of Persons), if the defendant is alleged to have:
(A) trafficked the child with the intent or knowledge that the child would engage in sexual conduct, as defined by Section 43.25, Penal Code; or
(B) benefited from participating in a venture that involved a trafficked child engaging in sexual conduct, as defined by Section 43.25, Penal Code; or
(5) Section 43.05(a)(2)(Compelling Prostitution).
(b) A defendant described by Subsection (a) who violates a condition of bond set under Article 17.41 and whose bail in the case is revoked for the violation may be taken into custody and denied release on bail pending trial if, following a hearing, a judge or magistrate determines by a preponderance of the evidence that the defendant violated a condition of bond related to the safety of the victim of the offense or the safety of the community. If the magistrate finds that the violation occurred, the magistrate may revoke the defendant’s bond and order that the defendant be immediately returned to custody. Once the defendant is placed in custody, the revocation of the defendant’s bond discharges the sureties on the bond, if any, from any future liability on the bond. A discharge under this subsection from any future liability on the bond does not discharge any surety from liability for previous forfeitures on the bond.

Tex. Code Crim. Proc. Art. 17.153

Utah

(1) An individual charged with, or arrested for, a criminal offense shall be admitted to bail as a matter of right, except if the individual is charged with:
(a) a capital felony when the court finds there is substantial evidence to support the charge;
(b) a felony committed while on parole or on probation for a felony conviction, or while free on bail awaiting trial on a previous felony charge, when the court finds there is substantial evidence to support the current felony charge;
(c) a felony when there is substantial evidence to support the charge and the court finds, by clear and convincing evidence, that the individual would constitute a substantial danger to any other individual or to the community, or is likely to flee the jurisdiction of the court, if released on bail;
(d) a felony when the court finds there is substantial evidence to support the charge and the court finds, by clear and convincing evidence, that the individual violated a material condition of release while previously on bail;
(e) a domestic violence offense if the court finds:
(i) that there is substantial evidence to support the charge; and
(ii) by clear and convincing evidence, that the individual would constitute a substantial danger to an alleged victim of domestic violence if released on bail;
(f) the offense of driving under the influence or driving with a measurable controlled substance in the body if:
(i) the offense results in death or serious bodily injury to an individual; and
(ii) the court finds:
(A) that there is substantial evidence to support the charge; and
(B) by clear and convincing evidence, that the person would constitute a substantial danger to the community if released on bail; or
(g) a felony violation of Section 76-9-101 if there is substantial evidence to support the charge and the court finds, by clear and convincing evidence, that the individual is not likely to appear for a subsequent court appearance…

Utah Code Ann. § 77-20-201

Vermont

A person charged with an offense punishable by life imprisonment when the evidence of guilt is great may be held without bail. If the evidence of guilt is not great, the person shall be bailable in accordance with section 7554 of this title.

Vt. Stat. Ann. tit. 13, § 7553 

A person charged with an offense that is a felony, an element of which involves an act of violence against another person, may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person’s release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence.

Vt. Stat. Ann. tit. 13, § 7553a

Virginia

Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person’s criminal history.
A. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer, unless there is probable cause to believe that:
1. He will not appear for trial or hearing or at such other time and place as may be directed, or
2. His liberty will constitute an unreasonable danger to himself, family or household members as defined in § 16.1-228, or the public.

Va. Code Ann. § 19.2-120

Washington

None specified – see state constitution.

West Virginia

(a) A person arrested for an offense not punishable by life imprisonment shall be admitted to bail by the court or magistrate. A person arrested for an offense punishable by life imprisonment may, in the discretion of the court that will have jurisdiction to try the offense, be admitted to bail.

W. Va. Code § 62-1C-1

Wisconsin

(1) Before conviction. Before conviction, except as provided in ss. 969.035 and 971.14 (1r), a defendant arrested for a criminal offense is eligible for release under reasonable conditions designed to assure his or her appearance in court, protect members of the community from serious bodily harm, or prevent the intimidation of witnesses. Bail may be imposed at or after the initial appearance only upon a finding by the court that there is a reasonable basis to believe that bail is necessary to assure appearance in court. In determining whether any conditions of release are appropriate, the judge shall first consider the likelihood of the defendant appearing for trial if released on his or her own recognizance.

Wis. Stat. Ann. § 969.01

(1) In this section, “violent crime” means any crime specified in s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.07, 940.08, 940.10, 940.19 (5), 940.195 (5), 940.198 (2) (a) or (c), 940.21, 940.225 (1), 940.23, 941.327, 948.02 (1) or (2), 948.025, 948.03, or 948.085.
(2) A circuit court may deny release from custody under this section to any of the following persons:
(a) A person accused of committing an offense under s. 940.01, 940.225 (1), 948.02 (1) or (2), 948.025, or 948.085.
(b) A person accused of committing or attempting to commit a violent crime and the person has a previous conviction for committing or attempting to commit a violent crime.
(3) A court may proceed under this section if the district attorney alleges to the court and provides the court with documents as follows:
(a) Alleges that the defendant is eligible for denial of release under sub. (2) (a) or (b).
(b) Provides a copy of the complaint charging the commission or attempted commission of the present offense specified in sub. (2) (a) or (b).
(c) Alleges that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent the intimidation of witnesses.

Wis. Stat. Ann. § 969.035

Wyoming

(a) A person arrested for an offense not punishable by death may be admitted to bail.
(b) A person arrested for an offense punishable by death may be admitted to bail at the discretion of the authorized judicial officer as defined by W.S. 7-10-104, except the defendant shall not be admitted to bail if the proof is evident or the presumption great in the case…

Wyo. Stat. Ann. § 7-10-101

Source: National Conference of State Legislatures, June 2022