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. Citations can be issued after arrest by police officers, booking officers and their superiors. (99-3-18)
Pretrial Release Eligibility
State constitution provides a presumption of pretrial release. Pretrial release can be denied for capital offenses, crimes punishable by life in prison or by 20 or more years, if the defendant has a previous conviction for a capital offense, and felonies committed while on pretrial release as enumerated in Const. art. 3 § 29(2). If there is potential for a murder charge, the defendant is not eligible for bail until it is known if the wounded victim will recover. (Const. art. 3 § 29; § 99-5-33)
Pretrial Release Conditions
Common conditions of release include: commercial surety, cash deposit, other secured bond, supervision and additional requirements. (§ 99-5-9; § 99-5-11; § 99-5-7; § 99-5-38)
Defendants charged with capital offenses, crimes punishable by life, offenses punishable by 20 or more years or if they have a prior conviction for a capital offense require a hearing to deny pretrial release. (Const. Art. 3, § 29)
Bail Bond Agent Licensure
The Department of Insurance regulates professional bail agents and personal surety agents. To be licensed, applicants must meet age, prelicense education and continuing education requirements, and pass a criminal background check. Applicants seeking to become a personal surety agent must also pass an exam. Applicants for either license cannot be employed as law enforcement or judicial officials, attorneys, or certain prison officials. Crimes for which a license can be denied or revoked include all felonies and crimes involving moral turpitude. (§ 83-39-3; § 83-39-7)
Bail Bond Agent Business Practices
The premium rate a bail agent can charge is the greater of $100 or 10 percent of the bond; $100 or 15 percent for capital offenses or out of state residency. They cannot offer legal advice, recommend an attorney or make arrangements with public officials. (§ 83-39-25; § 83-39-27)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 90 days to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider absences due to detention elsewhere, hospitalization or participation in a recognized drug rehabilitation program, placement in a witness protection program, or any other reason justifiable to the court. Statute addresses standards for remission procedure. Unpaid forfeitures can result in suspension in the agent’s authority to execute new bonds. (§ 99–5–25)
Recovery agents have similar licensing requirements as bail agents. (§ 83-39-5)
Victims’ Rights and Protections
Victims have the right to notification of pretrial release. Pretrial release hearings are required for misdemeanor or aggravated domestic violence, aggravated stalking, a violation of pretrial release related to a domestic violence offense, and for a violation of a domestic violence protection order. Defendants charged with these offenses can be detained up to 24 hours after pretrial release hearing. Electronic monitoring that includes an electronic receptor device can be ordered for domestic violence offenses. (§ 99-43-35(d); § 99-5-37; § 99-5-37; § 99-5-38)
Substance abuse problem-solving courts are authorized diversion programs. The District Attorney is authorized to establish diversion programs. (§ 99-15-105; § 9-23-15)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.