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 when the officer has probable cause to believe a person has committed a crime except for partner or family member assault involving injury to the victim, use of a weapon, or violation of a restraining order. Citations can be issued by peace officers. (§ 46-6-310; § 46-6-311)
Pretrial Release Eligibility
State constitution and statute provide a presumption of pretrial release. Pretrial release can be denied for capital offenses. (Const. art. 2 § 21; § 46-9-102)
Guidance for Setting Release Conditions
Law requires the least restrictive conditions be imposed. (§ 46-9-108(2))
Pretrial Release Conditions
Law allows release on personal recognizance. Common conditions of release include: commercial surety, cash deposit, property bond, other secured bond, supervision and additional requirements. (§ 46-9-109; § 46-9-111; § 46-9-401)
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 death, detention elsewhere, or placement in a court ordered treatment in a foreign jurisdiction. (§ 46-9-503)
Victims’ Rights and Protections
Victims have the right to be consulted about and to notification of pretrial release. Pretrial release hearings are required for assault on a partner or family member, stalking, or a violation of a protection order. If a bail bond is forfeited, the funds can be applied to a restitution order upon the defendant’s conviction. (§ 46-24-203(1); § 46-9-108(3); § 46-24-104; § 46-9-302; § 46-9-512)
Diversion programs authorized include: substance abuse and mental health problem-solving courts. Local prosecutors are authorized to establish diversion programs. (§ 46-16-130; § 46-1-1104; § 46-1-1204)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.