Pretrial Release Eligibility and Detention

6/1/2020

Pretrial Release EligibilityStates typically have a constitutional provision mirroring the federal Eighth Amendment prohibition on excessive bail. Constitutional or statutory provisions also provide the “right to bail”—the right to be released from jail prior to trial after a defendant agrees to return for court.

The Alabama constitution provides for example “That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident, or the presumption is great…” This broad constitutional right to bail language is identical to and can be traced back to language adopted in Pennsylvania in 1692.

These constitutional provisions establish the release/detention framework, setting state boundaries for initial pretrial detention or release. Defendants are often detained because of their inability to meet conditions of release, particularly those with financial requirements. To the extent that financial resources are not a question, constitutional provisions set the baseline for who can legally be released or detained.

Some state constitutions have been amended, and states have adopted statutory language to broaden which defendants might be eligible for detention beyond the category of capital defendants that was initially included in the 1692 language. Those provisions are detailed below.

Note that detention for defendants charged with a listed offense is not absolute. Often a court must make determinations before ordering detention such as finding that “the proof is evident or the presumption is great” against the defendant or that no conditions or combination of conditions could reasonably assure the appearance of the defendant or the safety of the defendant and the community.

Some state laws also authorize detention of defendants without specifying charges or circumstances. For example the New Jersey constitution does not enumerate charges, but instead specifies “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.”

50 State Chart | Pretrial Release Eligibility

STATE

WHEN PRETRIAL RELEASE MAY BE DENIED IN CONSTITUTION

WHEN PRETRIAL RELEASE MAY BE DENIED IN STATUTE

CITATION

OFFENSE(S) IF ANY ARE SPECIFICALLY LISTED

CITATION OFFENSE(S) IF ANY ARE SPECIFICALLY LISTED
Alabama Const. art. 1 § 16 Capital offenses

§§ 15-13-108 &

15-13-3
Same as constitution
Alaska Const. art. 1 § 11 Capital offenses § 12.30.011(d)(2) Unclassified felonies; class A felonies; sexual felonies; felony operating a vehicle while under influence; felony refusing to submit to a chemical test; felony crimes against a person or any domestic violence offense if have a previous similar conviction in last five years; felonies committed while on pretrial release; arrested for felonies committed in another state.
Arizona Const. art. 2 § 22 Capital offenses; sexual assault; sexual conduct or molestation of a minor; serious felony offenses if the defendant is in the country illegally,* as defined by the Legislature; felony committed while on pretrial release for a felony offense; felony offenses. § 13-3961 Same as constitution plus aggravated driving under the influence by a person in the country illegally; felonies involving dangerous crimes against children; terrorism; if defendant is a street gang member.
Arkansas Const. art. 2 § 8 Capital offenses Capital offenses None specified
California Const. art. 2 § 8 Capital offenses; felonies involving acts of violence; felony sexual assault; felonies involving threats of great bodily harm. Penal Code §§ 1271 & 1270.5 Capital offenses
Colorado Const. art. II § 19 Capital offenses; violent crimes committed while on pretrial release for a violent crime; violent crimes if there is a previous violent crime conviction or two previous convictions for any felony. § 16-4-101 Same as constitution plus illegal possession of a weapon due to criminal record; sexual assault; sexual assault on a child by one in a position of trust.
Connecticut Const art 1 § 8 Capital offenses    
Delaware Const. art. 1 § 12

Capital offenses

11 Del. C.

§§ 2103 & 2116

Same as constitution plus violent felonies committed while on pretrial release for a violent felony.

District of Columbia    

§§§§ 23-1321, 

23-1322, 23-1325, & 23-1329
1st and 2nd degree murder; assault with intent to kill while armed; any offense while on pretrial release for a felony or misdemeanor; crime of violence or dangerous crime (defined in §23-1331) while armed; crime of violence or dangerous crime and has previously been convicted of a crime of violence or dangerous crime while on pretrial release; two or more crimes of violence or dangerous crimes were committed in separate incidents— joined in the case before the judicial officer; robbery where victim sustained physical injury; carrying a pistol without a license; carrying a rifle or shotgun; possession of a firearm during commission of a crime of violence or dangerous crime; unlawful possession of a firearm; committing a gun crime (as defined in § 7-2508.01) while on probation, parole, or supervised release for a crime of violence or dangerous crime while armed (as defined in § 22-4502(a).
Florida Const. art. 1 § 14 Capital offenses or offenses punishable by life. § 907.041(4) Trafficking controlled substances; driving under the influence manslaughter and has a previous conviction for driving under the influence manslaughter, was driving with a suspended license, or was previously convicted for driving with a suspended license; dangerous offenses; any offense while on pretrial release for a dangerous offense; defendant has previously been sentenced under §§ 775.082(9) or 775.084 as a releasee reoffender, habitual violent felony offender, three time violent felony offender, violent career criminal, or state attorney files notice seeking sentencing as such; manufacturing controlled substances.
Georgia    

§§ 17-6-1 &

17-6-13
Stalking if the violation occurred on pretrial release or probation or parole for a stalking violation; serious violent felony if there is a previous conviction for a serious violent felony; family violence crime involving serious injury to victim.
Hawaii Const. art. 1 § 12 Offenses punishable by life.

§§ 804-4(a) &

804-3
1st or 2nd degree murder; 1st or 2nd degree attempted murder; a class A or B felony (except 1st degree forgery and failing to render aid).
Idaho Const. art. 1 § 6 Capital offenses

§§ 19-2902 &

19-2903
Same as constitution
Illinois Const. art. 1 § 9 Capital offenses; offenses punishable by life; offenses without possibility of parole. 725 ILCS 5/110-4 Same as constitution plus stalking; aggravated stalking; unlawful use of weapons when the offense occurred in a school zone; terrorist threats (attempts included).
Indiana Const. art. 1 § 17 Murder; treason § 35-33-8-2 Murder
Iowa Const. art. 1 § 12 Capital offenses § 811.1 None specified
Kansas Const. Bill of Rights § 9 Capital offenses

§§ 22-2802 &

59-29a20
Sexually violent predator
Kentucky Const. Bill of Rights § 16 Capital offenses    
Louisiana Const. art. 1 § 18 Capital offenses; crimes of violence; production, manufacture, distribution, or dispensing, or possession with intent to manufacture, distribute or dispense a controlled dangerous substance.

C. Cr. P. Art. 312

& Art. 313
Capital offenses; offenses that are classified as both a sex offense and a crime of violence that are punishable by imprisonment of 25 years or more; crimes of violence if defendant failed to appear after posting bail; production manufacture, distribution, or dispensing, or possession with intent to manufacture, distribute or dispense a controlled dangerous substance if defendant failed to appear after posting bail; domestic abuse battery; violation of protective orders; stalking; any felony offense involving use or threatened use of force or a deadly weapon upon a family member, household member, or dating partner.
Maine Const. art. 1 § 10 Crimes that are currently or were formerly (since the adoption of the constitution) a capital offense, regardless of current penalty. 15 § 1003(3) & (4) Same as constitution
Maryland     Cr. Pr. § 5-202 Escape; defendant being charged as a drug kingpin; crimes of violence if previous conviction for a crime of violence or any of the following crimes under (f)(1): wearing, carrying, or transporting a handgun, use of a handgun or an antique firearm in commission of a crime, violating prohibitions related to assault weapons, use of a machine gun in a crime of violence, use of a machine gun for an aggressive purpose, use of a weapon as a separate crime, possession of a regulated firearm, transporting a regulated firearm for unlawful sale or trafficking, possession of a rifle or shotgun by a person with a mental disorder; any of the above crimes under (f)(1) if previous conviction for a crime of violence or crime under (f)(1); one of the following crimes, when committed on pretrial release of the one of the following crimes: first or second degree aiding, counseling, or procuring arson, first, second, or third degree burglary, causing abuse to a child, a crime that relates to a destructive device, a crime that related to a controlled dangerous substance, manslaughter by vehicle or vessel, a crime of violence; violating a protective order involving threats or abuse; a registered sex offender.
Massachusetts     276 §§ 58 & 58A A felony that has as an element of the offense the use, attempted use, or threatened use of physical force against another; any felony that by its nature involves a substantial risk that physical force against another will result- including burglary and arson; violation of protection orders or offenses involving marital/child disputes (see 58A for specific sections); offenses involving domestic abuse; drug offenses with a mandatory minimum sentence of three years; intimidation of a witness; 3rd or subsequent driving under the influence; illegal possession of a firearm as enumerated in 269 §10(a), (c) & (m) & 269 §10G.; new crime while on pretrial release.
Michigan
 
Const. art. 1 § 15 Murder; treason; violent felonies if there are two previous violent felony convictions within 15 years; 1st degree criminal sexual conduct; armed robbery; kidnapping with intent to extort money; violent felony while on probation, parole, or pretrial release for a violent felony. §§§ 765.5, 765.6(1), & 765.6(d) Murder and treason.
Minnesota Const. art. 1 § 7 Capital offenses    
Mississippi Const. art. 3 § 29 Capital offenses; crimes punishable by life in prison; offenses punishable by 20 or more years; defendant has a previous conviction for a capital offense or offense punishable by 20 or more years; felony committed while on pretrial release as enumerated in Const. Art. 3 § 29(2).

§§ 99-5-33 &

99-5-35
Any offense where there is potential for a murder charge until it is known if the wounded victim will recover.
Missouri Const. art 1 § 20 Capital offenses §§§ 544.455, 544.457 & 544.470 Illegal alien charged with any offense.
Montana Const. art. 2 § 21 Capital offenses § 46-9-102 Same as constitution
Nebraska Const. art. 1, § 9 NA NA  
Nevada Const. art, 1, § 7 Capital offenses or murder punishable by life without parole. § 178.484 1st degree murder
New Hampshire     §§§ 597:1, 597:1c, & 597:2 Offenses punishable by life; abuse of a family or household member or intimate partner (see §173 B:1(I)); violation of a protection order protecting an intimate partner.
New Jersey Const. art. 1 § 11 None specified § 2A:162-19 Murder; offenses punishable by life.
New Mexico Const. art. 2 § 13 Capital offenses; felonies    
New York     CLS CPL § 510.10 A violent felony offense (see CLS Penal § 70.02) except 2nd degree burglary under § 140.25(2) and 2nd degree robbery under § 160.10(1); 3rd degree witness intimidation; witness tampering; Class A felonies except section 220 (§ 220.77 not excepted);
North Carolina Const. art. 1 § 27 None specified  

Capital offenses; drug trafficking while on pretrial release for another offense and there is a prior Class A through E felony or drug trafficking conviction (or release from custody for that conviction) within the previous five years; offense associated with a criminal street gang while on pretrial release for another offense and there is a prior similar conviction (or release from custody for that conviction)  within the previous five years; felonies or Class A1 misdemeanors involving a firearm while on pretrial release for the same and there is a prior similar conviction (or release from custody for that conviction)  within the previous five years;  manufacture of methamphetamine committed to maintain dependence on or illegal use of the drug.

North Dakota Const. art. 1 §11 Capital offenses    
Ohio Const. art. 1 § 9 Capital offenses; felonies that pose a substantial risk of serious physical harm, as determined by the General Assembly. § 2937.222 Noncapital aggravated murder; murder; 1st or 2nd degree felony; aggravated vehicular homicide; vehicular homicide; vehicular manslaughter; felony stalking; felony driving under the influence of drugs or alcohol.
Oklahoma Const. art. 2 § 8 Capital offenses; violent offenses; offenses punishable by life; felonies when there are two or more prior felony convictions; dangerous controlled substance offenses when maximum sentence at least 10 years. 22 § 1101 Same as constitution plus kidnapping.
Oregon Const. art. 1 §§ 14 & 43 Murder; treason; aggravated murder; violent felonies. §135.240 Same as constitution plus any offense while on pretrial release.
Pennsylvania Const. art. 1 §14 Capital offenses or offenses punishable by life. 42 Pa.C.S. 5701 Same as constitution
Rhode Island
 
Const. art. 1 §9 Offenses punishable by life; offenses involving use or threat of use of a dangerous weapon when there is a previous similar conviction or previous life sentence; drug crimes punishable by more than 10 years. § 12-13-1 None specified
South Carolina Const. art. 1 §15 Capital offenses; offenses punishable by life; violent offenses, as defined by the General Assembly. § 22-5-510 Same as constitution. Defines violent offenses as those enumerated in § 16-1-60.
South Dakota Const. art. 6 §8 Capital offenses    
Tennessee Const. art. 1, §15 Capital offenses § 40-11-102 Same as constitution
Texas Const. art. 1 §§§ 11, 11a, & 11c Capital offenses; felonies when there are two previous felony convictions; felonies while on pretrial release for a felony; offenses involving a deadly weapon when there is a previous felony conviction; violent or sexual felonies while on supervision for a prior felony. Authorizes legislature to enact a law to deny release for a violation of a protection order that is a condition of pretrial release for a family violence offense. C. Cr. P. Art. 17.152 & Art. 17.153 Violation of a protection order that is a condition of pretrial release related to family violence or a child victim.
Utah Const. art. 1 §8 Capital offenses; felonies committed while on pretrial release, probation, or parole for another felony; crimes designated by statute as non-bailable.

§ 77-20-1

(effective Oct. 1, 2020)
Same as constitution plus felonies, if in a former instance defendant violated a material condition of bail; domestic violence offenses.
Vermont Const. §40 Offenses punishable by death or life imprisonment; felonies involving violence. 13 §§§§§ 7553, 7553a, 1043, 1044, & 1063 Same as constitution plus 1st and 2nd degree aggravated domestic assault; aggravated stalking.
Virginia     §§ 19.2-120 & 19.2-120.1 Violent offenses enumerated in §19.2-297.1; offenses punishable by life imprisonment or death; drug offenses punishable by 10 or more years if there is a prior similar conviction or conviction as drug kingpin; firearm offenses carrying a mandatory minimum penalty; any felony if there are two or more prior convictions for violent offenses or offenses punishable by life imprisonment or death; felonies committed while on pretrial release for another felony; sexual crimes listed under § 18.2-67.5:2(B) with a previous conviction for a similar offense; child pornography/certain offenses against children; gang participation or recruitment; terrorism; bioterrorism; driving under the influence resulting in death or injury and there are three prior convictions for a similar offense in the past five years; a second or subsequent violation of a protection order; third or subsequent assault and battery against family or household member within 20 years; offenses of obstructing justice or resisting arrest with threats of force; strangulation of a family or household member; sex trafficking; illegal aliens charged with certain crimes see § 19.2-120.1.
Washington Const. art. 1 §20 Capital offenses; offenses punishable by life. NA  
West Virginia     § 62-1C-1 Life imprisonment
Wisconsin Const. art. 1 §8 Authorizes the Legislature to enact a law allowing denial of release for murder punishable by life, sexual assault punishable by a maximum of 20 years, and for felonies involving serious bodily injury or threat of serious bodily injury if there is a previous similar conviction. §§ 969.01 & 969.035 1st degree intentional homicide; 1st or 2nd degree sexual assault of a child; repeated acts of sexual assault on the same child; sexual assault of a child placed in substitute care; violent crime or attempted violent crime and has a previous similar conviction.
Wyoming Const. art. 1 §14 Capital offenses § 7-10-101 Same as constitution

Source: National Conference of State Legislatures, June 2020

Constitutional and statutory provisions provide a framework for pretrial release decision-making, but court rule and case law provide further guidance. Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included. Laws governing the release of defendants charged with a crime when they are already under the supervision of the criminal justice system (in prison or on community supervision) also are not included in this chart.