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 presumptive for misdemeanors, however a citation cannot be issued for driving under the influence unless the offender was admitted to a hospital or detained for medical treatment for at least three hours, or for misdemeanor traffic offenses. Citations can be issued after arrest by peace officers. Sheriffs or their designee can issue citations after arrest for misdemeanors with no exceptions. Issuing a citation is allowable for shoplifting, writing bad checks, assault or battery as enumerated in § 40-7-118(b)(3)(D), prostitution if the officer has knowledge of past conduct in prostitution or has reasonable cause to believe the prostitution will continue. These citations can be issued after arrest by peace officers. (§ 40-7-118; § 40-7-120)
Pretrial Release Eligibility
State constitution and statute provide a presumption of pretrial release. Pretrial release can be denied for capital offenses. (Const. art. 1, § 15; § 40-11-102)
Guidance for Setting Release Conditions
Law requires the least restrictive conditions be imposed. (§ 40-11-116)
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. A bond that is twice the customary amount is required for offenses committed while on pretrial release. (§ 40-11-122; § 40-11-115; § 40-11-116; § 40-11-137)
Bail Bond Agent Licensure
The Department of Commerce and Insurance regulates professional bondsmen. To be licensed, applicants must meet prelicense education and continuing education requirements. They cannot be employed as elected peace officers or an officer’s deputy; any elected or appointed county official; jailers; attorneys; police officers; committing, municipal, or magistrate judges; clerks or deputy clerks; sheriffs, deputy sheriffs or constables; any person with arrest power; or certain prison officials. They cannot be convicted felons. (§ 40-11-301)
Bail Bond Agent Business Practices
The premium rate a bail agent can charge is no more than 10 percent. They cannot offer legal advice or make arrangements with public officials. (§ 40-11-316; § 40-11-310; § 40-11-309)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 180 days to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider absences due to mental or physical disability or detention elsewhere. Statute addresses standards for remission procedure. Unpaid forfeitures can result in the suspension of the agent’s authority to execute new bonds. (§ 40-11-139; § 40-11-201; § 40-11-204; § 40-11-306)
Recovery agents are overseen by the same regulatory as bail agents and are subject to lesser requirements. Associations with bail agents must be disclosed. (§ 40-11-318; § 40-11-320)
Victims’ Rights and Protections
Victims have the right to notification of, to attend and to be heard at the pretrial release hearing. Victims also have a right to notification of pretrial release and the conditions of release. Defendants charged with stalking or aggravated stalking, person offenses that involve domestic abuse, and offenses involving harm or abuse of an elderly person can be detained at least 12 hours after arrest. Electronic monitoring that includes an electronic receptor device can be ordered for stalking or aggravated stalking, person offenses that involve domestic abuse, and offenses against a person where the victim is defined as a victim of domestic abuse, sexual abuse or stalking as enumerated in § 36-3-601. (§ 40-11-150; § 40-11-106(c); § 40-38-110(a); Const. art. I, § 35; § 40-11-150(h) & (k); § 40-11-150; § 40-11-152)
Mental health problem-solving courts are authorized diversion programs. Diversion is also authorized for crimes enumerated in § 40-15-105. (§ 40-15-101 et. seq.; § 16-15-5013 e)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.