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 at any time during the arrest process by peace officers, public officials charged with enforcement of law, port of entry agents and authorized volunteers. (§ 77-7-18)
Pretrial Release Eligibility
State constitution and statute provide a presumption of pretrial release. The constitution allows pretrial release can be denied for capital offenses, felonies, felonies while on pretrial release, crimes designated by statute as non-bailable. Statute allows pretrial release to be denied for felonies and domestic violence offenses. (Const. art. 1 § 8; § 77-20-1; § 77-36-2.5(10))
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, other secured bond and supervision. (§ 77-20-4; § 77-20-3; § 77-20-5; § 77-36-2.5)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has six months to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider absences due to death. Unpaid forfeitures can result in the suspension of the agent’s authority to execute new bonds. (§ 31A-35-504; § 77-20b-102; § 77-20b-104)
Recovery agents are required to apply for and maintain licensure. Associations with bail agents must be disclosed, and recovery agents are required to wear identifying clothing and follow set guidelines when making arrests on private property. (§ 53-11-111; § 53-11-121; § 53-11-123)
Victims’ Rights and Protections
Victims have the right to notifications 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. Pretrial release hearings are required for violations of a criminal protection order and domestic violence offenses. Defendants charged with domestic violence offenses cannot be released “prior to the close of the next court day following the arrest.” Electronic monitoring can be ordered for domestic violence offenses. (§ 77-36-2.5(6) & (9); § 77-38-4(1); § 77-20-1(3)(a); § 77-36-2.5(2); § 77-36-2.6(1); § 77-36-2.5(4))
Diversion is authorized for offenses enumerated in §77-2-9. (§ 77-2-5 et. seq.)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.