Victims' Pretrial Release Rights and Protections

5/12/2015

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Introduction

Crime victims have “… the right to be reasonably protected from the accused through the imposition of appropriate bail or conditions of release by the court …” —Article I, section 24 of the Alaska State Constitution

Laws in every state provide rights for and services to victims. Most states have laws that specifically address victim interests related to pretrial release. Victims’ rights laws in California, Delaware, Illinois, Louisiana, Mississippi, Missouri, Oklahoma, Oregon and Texas specifically instruct judges to consider the safety of victims when determining conditions of pretrial release. Laws in other states address various victim-specific rights and protections at the pretrial stage.

Right to Notification and Participation

Notice and participation rights laws afford the victim the choice to actively participate in criminal proceedings or stay removed.

Forty-one states provide a victim with the right to be notified when a defendant is released prior to trial. In at least 10 of these states, the victim also is required to be notified of the release conditions. Twenty-five states require that the victim be notified of the pretrial release hearing.

Most states provide victims the right to participate in the criminal justice process. This can include the right to attend and be heard at all “critical” stages of criminal justice proceedings. Laws in 19 states address participation in hearings related to pretrial release and conditions. Victim participation can include consultation about the possibility of release or appropriate release conditions, the right to attend release hearings and the opportunity to be heard during the hearing.

This chart provides more information on laws covering pretrial victim notification and participation rights.

Victim Notification and Participation Rights in Pretrial Release*
State and Citation Right to Notice of Release Right to Notice of Release Hearing Right to Participation
Alabama Code §15-23-75(4) X    
Alaska Stat. §12.30.016(f); §12.30.027(d); Const. art. I, § 24 X** X Attend and be heard
Arizona Rev. Stat. Ann. §13-4407; §13-4412; §13-4422; §13-4406; Const. art. II, § 2.1 X** X Attend and be heard
Arkansas Code Ann. §16-21-106(a)   X  
California Const. art. I, § 28; Penal Code §679.02(12) X X Attend and be heard
Colorado Rev. Stat. §24-4.1-302.5(b) & (c) X X Attend
District of Columbia Code §23-1902(c)(2) X    
Florida Stat. §960.001(b), (e) & (g)  X X Be consulted and attend
Georgia Code Ann. §17-17-5; §17-17-7  X X  
Hawaii Rev. Stat. §801D-4(a) X    
Idaho Code Ann. §19-5306(1)(j) X    
Illinois Const. art I §8.1(5); 725 ILCS 120/4.5(b) & (c) X X Be heard
Indiana Code §35-40-5-2; §35-40-7-2 X X  
Iowa Code §915.16 X**    
Kentucky Rev. Stat. Ann. §421.500(5); §431.064; §421.500(6) X** X Be consulted
Louisiana Rev. Stat. Ann. §46:1844(A)(3) X X  
Maine Rev. Stat. tit. 17-A, §1175-A(2) X    
Maryland Const. DECL OF RIGHTS, art. XLVII; Code Ann., Crim. Proc. §11-104    X  
Massachusetts Gen. Laws ch. 209A, §6 X    
Michigan Comp. Laws §780.755; §780.815 X    
Minnesota Stat. §629.72(6) & (7); §629.725; §629.73 X** X Attend
Mississippi Code Ann. §99-43-35(d) X    
Missouri Rev. Stat. §595.209(4), (5) & (7); Const. art. I, §32 X X Be consulted, attend and be heard
Montana Code Ann. §46-24-203(1); §46-9-108(3); §46-24-104 X   Be consulted
Nebraska Rev. Stat. §178.5698 X    
Nevada Rev. Stat. §178.5698 X**    
New Jersey Stat. Ann. §2C:25-26.1; §52:4B-44 X X  
New York Exec. Law §641, §646, §642; §647 X   Be consulted
North Dakota Cent. Code §12.1-34-02(4) X** X  
Ohio Rev. Code Ann. §2930.05(A) X    
Oklahoma Const. art. II, §34 X    
Oregon Const. art. I, §42   X Attend and be heard
Pennsylvania 18 Pa. Cons. Stat. §11.201(2) & (9) X    
Rhode Island Gen. Laws §12-28-11(b); §12-28-3(a)(2) X X  
South Carolina Code Ann. §16-3-1525(A), (B), (H) & (I); Const. art. I, §24 X X Attend and be heard
South Dakota Codified Laws §23A-28C-1 X X  
Tennessee Code Ann. §40-11-150; §40-11-106(c); §40-38-110(a); Const. art. I, §35 X** X Attend and be heard
Texas Code Crim. Proc. Ann. art. 17.29 X    
Utah Code Ann. §77-36-2.5(6) & (9); §77-38-4(1) X** X Attend and be heard
Vermont Stat. Ann. tit. 13, §5305; §5308 X** X Be consulted and attend
Virginia Code Ann. §19.2-11.01; §40.1-28.7:2 X   Attend
Washington Const. art. I, §35 X X Attend and be heard
West Virginia Code §61-11A-6(4)-(5); §62-1c-17c(c) X X Be consulted
Wyoming Stat. Ann. §1-40-204(b)(iv) X    

*No statute located for states not listed
**State also requires victim be notified of the defendant's pretrial release conditions

Source: National Conference of State Legislatures, 2015
Westlaw was used to conduct this research.

Court rule and case law provide further guidance regarding victim notification.  Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.

Full text of statutes can be retrieved using NCSL's State Legislatures Internet Links database.

Victim Protection: Hearings

In some states, all defendants must see a judge to have the conditions of their release set. Other states use bail schedules, bail commissioners or law enforcement officers to set conditions of release for the bulk of defendants. Under the latter circumstance, states may require a court official to determine release conditions for more serious charges. Often these are crimes that involve a victim. A pretrial release hearing allows the court to take individual circumstances of the crime into consideration when determining release. 

This chart lists the states and offenses in which a pretrial release hearing is required.

Required Pretrial Release Hearings for Victim-Related Crimes*
State and Citation Applicable Offenses
Alabama Code §15-13-190(a) Domestic violence offenses involving physical contact with the victim; violation of protection order.
Alaska Stat. §12.30.027 Domestic violence
Arkansas Code Ann. §16-81-113(a) Domestic violence
California Penal Code §1270.1(a); §853.6(2) Serious felonies; violent felonies except residential burglary; felony intimidation of a witness; rape of a spouse; corporal injury to a family member; threat of injury by an electronic communication device to a family member; stalking; domestic violence battery; violation of protection order by threat or use of violence or going to the workplace or residence of the protected party; misdemeanor violation of protection order involving domestic violence.
Delaware Code Ann. tit. 10, §1046 Violation of protection order
District of Columbia Code §23-1323(a); §23-1322(b) Violent crime if defendant is believed to be addicted to narcotic drugs.

Florida 

Stat. 741.2901(3); §903.046(I) & (m)

Domestic violence offenses; offenses related to criminal gangs; burglary; sexual offenders; sexual predators.
Georgia Code Ann. §17-6-1 Treason; murder; rape; aggravated sodomy; armed robbery; home invasion in the first degree; aircraft hijacking; motor vehicle hijacking; aggravated child molestation; aggravated sexual battery; kidnapping, arson, aggravated assault, or burglary with a prior similar conviction or was on pretrial release for a similar offense or other offenses enumerated in §17-6-1(a)(11); aggravated stalking; family violence offense; violation of a criminal family violence order; homicide by vehicle.
Illinois 725 ILCS 5/110-5.1 Violent crime against a family or household member with a prior similar conviction or the offense involved physical harm, threat of physical harm or possession of a deadly weapon.
Indiana Code §35-33-8-3.5 Sexually violent predator; child molestation; child solicitation.
Iowa Code §708.11(5); §664A.3(2) Stalking; violation of protection order.
Kansas Stat. Ann. §22-2901(7) Criminal trespass in violation of a protection order
Louisiana Code Crim. Proc. Ann. art. 330.3 Felony family or household member or dating partner offenses.
Maine Rev. Stat. tit. 15, §1023(4) Offenses against family or household member as enumerated in 15  §1023(B-1) & (4)(c); domestic violence, sexual assault, or sexual exploitation of a minor while on pretrial release.
Maryland Code Ann., Crim. Proc. §5-202 Violent crime with a prior similar conviction; crimes enumerated in Cr.Pr. Law §5-202(d)(1) while on pretrial release; violation of protection order; firearm offenses enumerated in Cr.Pr. Law §5-202(f)(1) with a prior similar conviction; defendants required to register as a sex offender.
Massachusetts Gen. Laws ch. 276, §57; §58A Violation of protection order; misdemeanor or felony abuse of family or household member in violation of protection order; other offenses involving physical force or abuse enumerated in 276 §58A.
Minnesota Stat. §629.72 Harassment; domestic abuse; violation of protection order; violation of domestic abuse no contact order.
Mississippi Code Ann. §99-5-37 Misdemeanor domestic violence; aggravated domestic violence; aggravated stalking; violation of pretrial release related to a domestic violence offense; violation of domestic violence protection order.
Montana Code Ann. §46-9-302 Assault on a partner or family member; stalking; violation of protection order.
Nebraska Rev. Stat. §42-929 Violation of protection or restraining order
Nevada Rev. Stat. §178.484(7) & (8) Domestic violence battery; violation of domestic violence protection order that involved threat of harm, has a previous violation of protection order, or has a concentration of alcohol of .08 or more or under the influence of a prohibited substance.
New Hampshire Rev. Stat. Ann. §594:20-a Violation of protection order
New York Crim. Proc. Law §530.20 Class A felony; any offense with two prior felony convictions.
North Carolina Gen. Stat. §15A-534.1  Assaulting, stalking, threatening, or committing a felony upon a spouse, former spouse or person whom the defendant has lived with as if a spouse; domestic criminal trespass; violation of domestic violence protection order.
North Dakota Cent. Code §14-07.1-10(3) Domestic violence
Ohio Rev. Code Ann. §2919.251; §2937.23 Violent offenses against family or household member if the offense was in violation of protection order or the offense involved physical harm, possession of a deadly weapon, or threat of serious physical harm; assault on a peace officer.
Oklahoma Stat. tit. 22, §1105(B)  Violation of protection order; domestic abuse; stalking; harassment; domestic assault; domestic assault or battery with a deadly weapon.
Rhode Island Gen. Laws §12-29-4; §12-29.1-5 Crimes involving domestic violence; crimes involving violence against an elderly person.
South Dakota Codified Laws §25-10-40 Assault of a person involved in one of the following relationships: spouse or former spouse, significant romantic relationship, has or is expecting a child with the defendant, parent and child; violation of protection order.
Utah Code Ann. §77-20-1(3)(a); §77-36-2.5(2 Violation of a jail release agreement; domestic violence.
Washington Rev. Code §10.19.055 Class A and B felonies.

*No statute located for states not listed

Source: National Conference of State Legislatures, 2015
Westlaw was used to conduct this research.

Court rule and case law provide further guidance regarding required pretrial release hearings. Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.

Full text of statutes can be retrieved using NCSL's State Legislatures Internet Links database.

Victim Protection: Detention

Defendants accused of domestic violence, sex offenses, stalking, violation of a protection order and other violent offenses are often presumed by law to pose a higher risk to victim and community safety.

For example, Utah law states:

“(B)ecause of the unique and highly emotional nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of an offender who has been arrested for domestic violence, it is the finding of the Legislature that domestic violence crimes are crimes for which bail may be denied if there is substantial evidence to support the charge, and if the court finds by clear and convincing evidence that the alleged perpetrator would constitute a substantial danger to an alleged victim of domestic violence if released on bail.” — §77-36-2.5(12)

Seven states and the District of Columbia mandate or allow a limited period of detention before release in these cases. In Nevada, defendants accused of certain domestic violence crimes must be detained for at least 12 hours after arrest. Mississippi and Texas permit judges to order a short stay in jail as a condition of the defendant’s release.

This chart shows state laws that authorize a period of detention for certain defendants.
 

Detention Prior to Pretrial Release*
State and Citation Applicable Offenses Duratin of Detention
District of Columbia Code §23-1323(a); §23-1322(b) Violent offenses if defendant is believed to be addicted to narcotic drugs. Up to three days after arrest.
Indiana Code §35-33-8-6.5 Domestic violence Eight hours after arrest.
Massachusetts Gen. Laws ch. 276, §42A Domestic abuse or domestic violence Six hours after arrest or until hearing.
Mississippi Code Ann. §99-5-37 Misdemeanor domestic violence; aggravated domestic violence; aggravated stalking; violation of pretrial release related to a domestic violence offense; violation of domestic violence protection order. Up to 24 hours after pretrial release hearing.
Nevada Rev. Stat. §178.484 (7)-(8) Domestic violence battery; violation of domestic violence protection order that involved threat of harm, and has a previous violation of protection order or has a concentration of alcohol of .08 or more or under the influence of a prohibited substance. At least 12 hours after arrest.
Tennessee Code Ann. §40-11-150(h)-(k) Stalking; aggravated stalking; person offenses that involve domestic abuse; offenses involving harm or abuse of an elderly person. At least 12 hours after arrest.
Texas Code Crim Proc. Ann. art. 17.291 Prevention of family violence Maximum of four hours and up to an additional 48 hours after release hearing.  
Utah Code Ann. §77-36-2.5(2); §77-36-2.6(1) Domestic violence Cannot be released “prior to the close of the next court day following the arrest”

*No statute located for states not listed

Source: National Conference of State Legislatures, 2015
Westlaw was used to conduct this research.

Court rule and case law provide further guidance regarding detention prior to release.  Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.

Full text of statutes can be retrieved using NCSL's State Legislatures Internet Links database.

Technology

Electronic monitoring technology is often authorized as a pretrial condition to ensure the defendant’s appearance.

States also have begun using electronic monitoring to help protect victims in cases involving threats or harm. Courts commonly place area restrictions on the defendant, prohibiting them from locations such as the victim’s home or place of work.

Electronic monitoring helps to ensure that a defendant is compliant and provides alerts to law enforcement if area restrictions are violated. Newer technology also notifies the victim when a defendant gets too close to restricted locations. Seven states have specifically authorized use of electronic receptors to warn victims, if the victim chooses to participate.

This chart shows statutory provisions with regard to pretrial electronic monitoring and victim technology.

Pretrial Electronic Monitoring and Victim Technology*
State and Citation Applicable Offenses Victim Technology
Alabama Code §15-20A-20 Sex offenses that will require registration None specified
Arizona Rev. Stat. Ann. §13-3967(E) Sexual exploitation of children None specified
Arkansas Code Ann. §9-15-217 Violation of protection order Notifies the victim if the defendant is close.
California Penal Code §136.2(a)(7)(D)** Violent crimes None specified
Connecticut Gen. Stat. §46b-38c(f); §18-100f(d)** Violation of restraining or protection order and determined to be high-risk. Warns the victim and law enforcement if the defendant is within a specified distance.
Class D or E felonies or misdemeanors except 4th degree sex assault; 3rd degree sex assault; 1st degree stalking; or 2nd degree assault involving a firearm or motor vehicle or where the victim is elderly, blind, disabled, pregnant or has an intellectual disability. None specified
Florida Stat. §907.041 Dangerous offenses as enumerated in §907.041(4). None specified
Illinois 730 ILCS 5/5-8A-7 Violation of protection order Communicates with the victim when boundaries are violated.
Indiana Code §35-33-8-11 Domestic violence None specified
Kentucky Rev. Stat. Ann. §431.520(5) Sex offenses None specified
Louisiana

Code Crim. Proc. Ann. art. 336.1(B); 335.1; 330.3

Aggravated rape None specified
Felony offenses against a family or household member or dating partner None specified 
Michigan Comp. Laws §765.6b(6) Domestic violence or any assaultive crime. Electronic receptor device
Minnesota Stat. §629.72** Domestic violence crimes enumerated in §609.135(5a)(b). None specified
Mississippi Code Ann. §99-5-38 Domestic violence Electronic receptor device
New Hampshire Rev. Stat. Ann. §597:2(III-a) Abuse of a family or household member; violation of protection order for domestic violence. None specified
Oklahoma Stat. tit. 2,2 §60.17 Domestic assault and battery; stalking; harassment; sexual assault; forcible sodomy; violation of protection order involving domestic assault and battery, stalking, harassment, sexual assault, or forcible sodomy. Allows the victim to monitor location of the defendant.
Tennessee Code Ann. §40-11-150; §40-11-152 Stalking; aggravated stalking; person offenses that involve domestic abuse; offenses against a person where the victim is defined as a domestic abuse victim, a sexual assault victim or stalking victim as enumerated in §36-3-601 . Electronic receptor device
Texas Code Crim. Proc. Ann. art. 17.49 Offenses involving family violence Electronic receptor device.
Utah Code Ann. §77-36-2.5(4) Domestic violence None specified
Washington Rev. Code §10.99.040; §7.90.150 Domestic violence; sex offenses enumerated in §99.94A.030(46); attempt, solicitation or conspiracy to commit a sex offense enumerated in §99.94A.030(46); communication with a minor for immoral purposes. None specified

*No statute located for states not listed

**Law requires local jurisdictions to adopt a policy on use of electronic monitoring before the court may order electronic monitoring as a condition of release.

Source: National Conference of State Legislatures, 2015
Westlaw was used to conduct this research.

Court rule and case law provide further guidance regarding electronic monitoring and victim technology.  Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.

Full text of statutes can be retrieved at NCSL's State Legislatures Internet Links database.

Restitution and Financial Assistance

All states give victims the right to an order of restitution for damages and all have set up funds to support victim compensation or other assistance programs.

In 10 states—Alaska, California, Illinois, Indiana, Kansas, Minnesota, Montana, Nevada, Washington and Wisconsin­—statutes authorize funds from forfeited bail bonds be directed to victims. Montana and Wisconsin laws allow the court to order, without making a determination of guilt, that restitution be awarded to the victim and the forfeited bond is applied directly to the restitution order. Upon conviction in Alaska, California and Indiana, forfeited bonds are applied to any restitution ordered. A portion of funds forfeited in Illinois, Kansas, Nevada and Washington are allocated to victim-specific funds. In Nevada, 90 percent of each forfeiture is deposited into the state crime victim compensation fund and Washington has a fund to support testimony by victims and witnesses.

This chart lists laws that allow forfeited bonds be directed to victims.

 
Forfeited Bail Bond Funds Disbursed to Victims*
State and Citation Recipient of Forfeited Funds
Alaska Stat. §12.30.075 Victim
California Penal Code §1463.009 Victim
Illinois 705 ILCS 105/27.6 Violent Crime Victims Assistance Fund
Indiana Code §35-33-8-3.2(a); §35-33-8-7; §35-33-8-8 Victim
Kansas Stat. Ann. §74-7336 Crime Victims Assistance Fund and Victims Compensation Fund.
Minnesota Stat. §485.018 Victim
Montana Code Ann. §46-9-512 Victim
Nevada Rev. Stat. §178.518 Fund for Compensation of Victims of Crime
Washington Rev. Code §7.68.035 Fund that supports local victim and witness programs.
Wisconsin Stat. §969.13(5) Victim

*No statute located for states not listed

Source: National Conference of State Legislatures, 2015
Westlaw was used to conduct this research.

Court rule and case law provide further guidance regarding forfeited bail bond funds.  Court rule is not included in this chart unless a statute authorizes or is superseded by the rules and case law is not included.

Full text of statutes can be retrieved at NCSL's State Legislatures Internet Links database.

[1] Cal. Const. art. I, §28(b)(3); Miss. Code Ann. §99-36-5(1)(b); Mo. Const. art. I, §32(2); Ore. Const. art. I, §43(b); Vernon’s Ann. Texas C.C.P. Art. 56.02(a)(2). 

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