State legislatures consider and enact laws that address all aspects of pretrial policy, including citations, release eligibility, conditions of release, commercial bail bonding, victims’ rights and diversion. These legislative policies have an important role in providing fair, efficient and safe practices carried out by law enforcement and the courts.
Below is a synopsis of this state’s pretrial release laws as of March 2013 and any relevant legislative reports or audits. Recent enactments modifying these provisions can be found in NCSL’s pretrial enactments database.
Citation in Lieu of Arrest
Issuing a citation is not presumptive, however a citation can be issued for misdemeanors except for traffic misdemeanors. Citations can be issued by law enforcement officers. (§ 35-33-4-1(f))
Pretrial Release Eligibility
State constitution provides a presumption of pretrial release. Pretrial release can be denied for murder and treason. (Const. art. 1 § 17; § 35-33-8-2)
Pretrial Release Conditions
Law allows release on personal recognizance. Common conditions of release include: commercial surety bond, cash deposit, property bond, supervision and additional requirements. Electronic monitoring is authorized for defendants supervised by a pretrial services program. The greater of a $2,500 bond or a bond equal to the original bond amount is required for failure to appear while on pretrial release. (§ 35-33-8-3.2)
Defendants charged with murder require a hearing to deny pretrial release. (§ 35-33-8-2)
Bail Bond Agent Licensure
The Department of Insurance regulates bail agents. To be licensed, applicants must meet age, residency, prelicense education and continuing education requirements, and pass an exam. They cannot be employed as jailers, law enforcement officers, judges or certain prison officials. Crimes for which a license can be denied or revoked include conviction of, or release from, supervision for a felony in the past 10 years, and conviction of, or release from, supervision for a misdemeanor in the past five years. (§ 27-10-3-1)
Bail Bond Agent Business Practices
Bail agents are prohibited from soliciting business any place prisoners are confined or in any court. They cannot offer legal advice, recommend an attorney or make arrangements with public officials. (§ 27-10-4-2)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 365 days to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider absences due to death, illness, or detention elsewhere. Unpaid forfeitures can result in the suspension of the agent’s authority to execute new bonds. (§27-10-2-12)
Recovery agents have similar licensing requirements as bail agents. Associations with bail agents must be disclosed. (§ 27-10-3-1; § 27-10-3-14)
Victims’ Rights and Protections
Victims have the right to notification of the pretrial release hearing and notification of pretrial release. Pretrial release hearings are required for a sexually violent predator, child molestation and child solicitation. Defendants charged with domestic violence can be detained up to eight hours after arrest. Electronic monitoring can be ordered for domestic violence offenses. If a bail bond if forfeited, the funds can be applied to a restitution order upon the defendant’s conviction. (§ 35-40-5-2; § 35-40-7-2; § 35-33-8-3.5; § 35-33-8-6.5; § 35-33-8-11; § 35-33-8-3.2(a); § 35-33-8-7; § 35-33-8-8)
Diversion programs authorized include: substance abuse, mental health, veterans/active military and domestic relations problem-solving courts. The Judicial Center is authorized to establish diversion programs. (§ 11-12-3.7-7)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.