Pretrial Release

The purposes of the pretrial release decision are to provide due process to defendants, ensure the defendant’s appearance for trial, and, in most states, ensure the safety of specific individuals (e.g., victims and witnesses) and the community. According to the American Bar Association (ABA), pretrial release decision options include:

  • Release on the defendant’s own recognizance;
  • Release on non-financial conditions that require monitoring the defendant in the community;
  • Setting a money bail in the form of property, cash, or surety that the defendant must post to be released; and
  • Ordering the defendant detained without bail (see Preventive Detention topic).

In making the pretrial release decision, judges should choose the least restrictive alternative that best balances the defendant’s right to liberty while ensuring the defendant’s appearance and the community’s safety. The presumptive decision should be release pending trial (see Legal Framework topic). Research demonstrates the short-term and long-term harms that accrue to defendants who remain in detention pending their trial and the eventual negative consequences for families and the community as well. Both the Conference of Chief Justices and the Conference of State Court Administrators recommend “the presumptive use of non-financial release conditions to the greatest degree consistent with evidence-based assessment of flight risk and threat to public safety and to victims of crimes.”

Release decisions should be informed by a risk assessment based on factors related to the likelihood of failing to appear and committing a subsequent offense while awaiting trial (see Risk Assessment topic). Decisions to release with financial conditions, if used at all, should be made with a consideration of the defendant’s ability to pay. Research shows that financial conditions restrict some low risk but economically disadvantaged defendants from release while allowing high risk defendants with substantial means to gain release.

NCSC developed the Evidence-Based Judicial Decision Making Curriculum Toolkit in response to requests for information about pretrial and sentencing practices affecting persons facing potential local jail sentences. The Toolkit is available includes the following:

  1. Introduction to the Toolkit: a description of the purpose of the curriculum and considerations for delivering it.
  2. Presentation materials: a PowerPoint slide deck with faculty notes and a complete list of references cited in the faculty notes.
  3. Handouts & other demonstrative materials: sample sentencing scenarios, video clips, and other supplementary materials that may be used in the delivery of the curriculum.
  4. Companion briefs: four companion briefs that summarize current research and best practices. The briefs address effective court responses to persons with mental disorders, persons with substance use disorders, persons charged with Driving Under the Influence (DUI), and persons charged with Domestic Violence (DV) offenses.

The 1966 Federal Bail Reform Act created a presumption of release for defendants on their own recognizance in non-capital cases unless the judge could not adequately assure the defendant’s appearance at trial. In cases where defendants were not released on their own recognizance, judges were to levy the least restrictive conditions of release necessary to assure the defendant’s appearance. The Act also enumerated several offense-related and personal factors judges should consider when determining the conditions of release. The Act was revised in 1984 to include a second, more controversial, criterion for determining release: the defendant’s dangerousness to any specific person(s) or the community. In United States v. Salerno, the Supreme Court upheld the legitimacy of considering dangerousness in pretrial release decisions. Currently, most states and the District of Columbia use both public safety and failure to appear as criteria for determining pretrial release decisions. These criteria are also included in the professional standards of the American Bar Association, the National District Attorneys Association, and the National Association of Pretrial Services Agencies. Some jurisdictions have enacted legislation specifically authorizing the use of preventive detention for defendants considered too dangerous to release pretrial (see Preventive Detention topic).

More recent legislation and case law have focused on reducing reliance on financial conditions of release and increasing reliance on actuarial risk assessment results to inform pretrial release decisions (see Risk Assessment topic). In particular, the constitutionality of using bond schedules has been called into question in a series of class action suits undertaken by Equal Justice Under the Law. In Varden v. City of Clancy, one such case, the Department of Justice took the unusual step of filing a Statement of Interest in the case: “It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.” Judgments in the Varden and similar cases have agreed with the Department of Justice position and have resulted in the subsequent discontinuation of the use of bond schedules by courts in the sued jurisdictions.

Key Resources

Prior to 1970, judges did not have the authority to preventively detain defendants for public safety reasons. The District of Columbia Court Reform and Criminal Procedure Act of 1970 was the first statute to allow judges to consider a defendant’s dangerousness to the community in addition to flight risk as a reason for denying pretrial release (see Legal Framework topic). Public safety considerations subsequently were added to the Bail Reform Act of 1984 and upheld in United States v. Salerno and are now part of many state statutes.

Although allowing detention for dangerousness, the tenor of the 1984 Bail Reform Act was restrained, requiring procedural safeguards (e.g., a detention hearing with right to request counsel, testify, present witnesses, offer evidence) to ensure a presumption of liberty and release with the least restrictive conditions necessary. The District of Columbia (DC) exemplifies this approach: its statute presumes the least restrictive release for eligible defendants, detention with due process safeguards for those who potentially pose an unacceptable risk to the community, and an absolute prohibition on money-based detention (i.e., setting financial conditions that the defendant cannot meet). For fiscal years 2013 and 2014, approximately 16% of all persons arrested and charged with a crime in DC were initially detained, and over half of these were subsequently released prior to disposition. On average, approximately 90% of arrestees are released to the community either on their own recognizance or with supervised release conditions.

Preventive detention is not without its critics who express concern that a presumption of release will be overshadowed in some jurisdictions by concerns of possible dangerousness and that judges will continue to use financial conditions (i.e., high money bonds) to detain potentially dangerous defendants rather than conducting a detention hearing with all of its procedural safeguards.

Schnacke (2014) argues that the issue for states is determining the appropriate balance of bailable to unbailable defendants, given the presumption of release:

If a proper bail/no bail balance is not crafted through a particular state’s preventive detention provisions, and if money is left as an option for conditional release, history has shown that judges will use that money option to expeditiously detain otherwise bailable defendants. On the other hand, if the proper balance is created so that high-risk defendants can be detained through a fair and transparent process, money can be virtually eliminated from the bail process without negatively affecting public safety or court appearance rates.  (p. 52)

Key Resources