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 petty misdemeanors. Citations can be issued after arrest by law enforcement officers. (§ 31-1-6)
Pretrial Release Eligibility
State constitution provides a presumption of pretrial release. Pretrial release can be denied for capital offenses, any felony if the defendant has two or more previous felony convictions, and felonies involving use of a deadly weapon if the defendant has a prior felony conviction. (Const. art. 2 § 13)
Guidance for Setting Release Conditions
State statute provides a presumption of pretrial release on personal recognizance or unsecured appearance bond. Law requires the least restrictive conditions be imposed. (§ 38-1-3 authorizes R. Cr. P. 5-401(A) & (D)(2))
Pretrial Release Conditions
Law allows release on personal recognizance or an unsecured appearance bond. Common conditions of release include: commercial surety, cash deposit, property bond, supervision and additional requirements. (§ 38-1-3 authorizes R. Cr. P., Rule 5-401)
When a defendant is unable to meet the pretrial release conditions, a judicial review is required after 24 hours in custody. (R. Cr. P. Rule 5-401)
Bail Bond Agent Licensure
The Superintendent of the Division of Insurance regulates bail bondsmen and solicitors. To be licensed, applicants must meet age, residency, prelicense education and continuing education requirements, and pass an exam. They cannot be employed as law enforcement, adjudication, jail, court or prosecution officials or an employee thereof, an attorney, an official authorized to admit to bail, or a state or county officer. Crimes that can cause their license to be denied or revoked include all felonies with the exception of a conditional discharge of a felony conviction. (S. A. 1978, § 59A-51-3; S. A. 1978, § 59A-51-6)
Bail Bond Agent Business Practices
Bail agents cannot offer legal advice, recommend an attorney or make arrangements with public officials. No bail bond agency can advertise as a surety insurer. (§ 59A-51-13)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 10 days to produce the defendant or provide an adequate reason why the defendant did not appear. Statute addresses standards for remission procedure. Unpaid forfeitures can result in suspension of the agent’s authority to execute new bonds. (§ 31-3-2)
Recovery agents have similar licensing requirements as bail agents. Associations with bail agents must be disclosed. (§ 59A-51-6; § 59A-51-12)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.