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 (see Legal Framework topic). 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.Key Resources
- National Center for State Courts (2018). Evidence-Based Judicial Decision Making Curriculum Resources
- ABA Criminal Justice Section. (2007). ABA Standards for Criminal Justice: Pretrial Release and Frequently Asked Questions about Pretrial Release Decision Making.
- Conference of Chief Justices. (2013). Endorsing the Conference of State Court Administrators Policy Paper on Evidence-Based Pretrial Release.
- Conference of State Court Administrators. (2012). 2012-2013 Policy Paper Evidence-Based Pretrial Release.
- Jones, M. R. (2013). Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option.
- Lowenkamp, C. T., VanNostrand, M., & Holsinger, A. (2013). Investigating the Impact of Pretrial Detention on Sentencing Outcomes.
- Lowenkamp, C. T., VanNostrand, M., & Holsinger, A. (2013). The Hidden Costs of Pretrial Detention.
- New Mexico Administrative Office of the Courts. (2017). New Mexico Supreme Court Rules on Pretrial Detention and Release.
- PJCC Pretrial Justice Brief. (November 2016). Access to Counsel at Pretrial Release Proceedings.
- Oleson, et al. (2014). The Sentencing Consequences of Federal Pretrial Supervision.
- Schnacke, T. R. (2014). Money As a Criminal Justice Stakeholder: The Judge’s Decision to Release or Detain a Defendant Pretrial.
- Vera Institute. (2017). Out of Sight: The Growth of Jails in Rural America.