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What are Conditions for Pre-Trial Release?

By Spodek Law Group | May 23, 2023
(Last Updated On: October 11, 2023)

Last Updated on: 11th October 2023, 01:48 am

When someone is arrested and charged with a crime, the court has to decide whether to let them out of jail before their trial. This is called pre-trial release. The court looks at factors like the seriousness of the charges, the defendant’s criminal history, and their likelihood of showing up for court dates when making this decision. If the court decides to let the defendant out before trial, they will set certain rules and requirements that the defendant has to follow called conditions of release. These are meant to ensure the defendant comes back for their trial and doesn’t commit more crimes before their case is resolved.There are a few main types of pre-trial release conditions that courts commonly use:

Release on Personal Recognizance

This is when the court lets the defendant out without having to pay any bail money. It’s basically the court’s way of saying, “we trust you to come back to court when you’re supposed to.” The defendant just promises that they will show up for all their court dates. This is the least restrictive type of pre-trial release.

Release on Bail

Bail is money that the defendant has to give the court as a guarantee that they will return for trial. The amount is based on the charges against them. If they come back for court like they are supposed to, they get the bail money back at the end of the case. But if they miss court dates, the bail money is kept by the court. There are a couple ways bail can work:

  • Cash bail – The defendant has to pay the full bail amount upfront in cash to get released.
  • Surety bond – The defendant pays a bail bonds company a percentage of the total bail (usually 10%) and the company posts a surety bond with the court for the full amount.
  • Property bond – The defendant puts up property they own, like a house or car, as collateral for the full bail amount.

Bail is meant to give the defendant a financial incentive to come back and not skip town. But it has been criticized for unfairly keeping poor defendants locked up who can’t afford bail while letting wealthy defendants go free.

Pretrial Supervision

Instead of making the defendant pay bail, the court puts them under the supervision of a pretrial services agency. This means the defendant has to check in regularly with a pretrial officer, usually by phone or in person. The pretrial officer will monitor whether the defendant is complying with any other release conditions ordered by the court. Pretrial supervision provides accountability without requiring the defendant to pay money upfront.

Other Common Conditions

Courts can also order defendants to follow other rules of release besides just showing up for court. Common pretrial release conditions include:

  • Remaining drug and alcohol free – Getting regular drug testing
  • Complying with a curfew
  • Avoiding contact with the victim, witnesses, or co-defendants
  • Staying within the jurisdiction and not traveling outside a certain area without permission
  • Maintaining employment or going to school
  • Obeying all laws – no new criminal charges
  • Electronic monitoring – wearing an ankle monitor that tracks location
  • Getting medical/mental health treatment
  • Surrendering any passports or not applying for new travel documents
  • No possessing firearms or other weapons

The court tries to impose the least restrictive conditions necessary to get the defendant back to court and protect public safety. More serious charges generally come with more intense pretrial supervision. Defendants on pretrial release must follow the court‘s rules – violating conditions can lead to bail revocation or pretrial detention.

Why Are Conditions of Release Important?

Setting appropriate pretrial release conditions serves some important purposes in the criminal justice system:

  • Upholding rights – The 8th Amendment protects the right to reasonable bail and restricts excessive bail. Conditions of release aim to honor a defendant’s constitutional rights.
  • Presumption of innocence – Those awaiting trial are innocent until proven guilty. Release conditions allow defendants to maintain jobs, housing, and family responsibilities before their trial.
  • Public safety – Conditions like stay-away orders, curfews, and electronic monitoring can prevent defendants from committing more crimes before trial.
  • Court appearance – Bail, supervision, and other conditions incentivize defendants to show up for court rather than abscond. This keeps cases moving through the system.
  • Jail population – Pretrial release eases jail overcrowding by only keeping the highest-risk defendants detained. Lower-risk defendants can safely be managed in the community.
  • Cost savings – Supervising defendants costs less than incarcerating them pretrial. Taxpayers save money when low-risk defendants are released instead of jailed.
  • Case outcomes – Research shows defendants who are detained pretrial are more likely to plead guilty, get convicted, and receive longer sentences – even if they are innocent. Appropriate release conditions help ensure fair case outcomes.

Controversies Around Pretrial Release Conditions

While pretrial release serves important purposes, there are also controversies around how conditions are set and whether they are effective:

  • Racial disparities – Black and Hispanic defendants often face higher bail amounts and more restrictive conditions than white defendants with similar charges and histories. This contributes to disproportionate minority incarceration.
  • Wealth inequality – Bail and financial conditions discriminate against poor defendants who can’t afford bond compared to defendants with financial resources. Ability to pay often determines who gets released, not just public safety risk.
  • Net widening – Some critics argue alternatives to detention like electronic monitoring end up unnecessarily roping low-risk people into the criminal justice system and don’t address root causes of crime.
  • Ineffective – Lax monitoring means defendants released with conditions like drug testing, curfews, or supervision often slide through the cracks. There are limited consequences for violations.
  • Burdensome – Strict pretrial conditions like frequent in-person meetings disrupt jobs, childcare, and stability for marginalized groups. The conditions themselves can contribute to reoffending.
  • For-profit incentives – In some jurisdictions, for-profit bail bonds companies lobby for high bail amounts to make more money. Financial motives warp the pretrial system.

There are active debates around reforming the pretrial process to set fairer release conditions, hold released defendants accountable, reduce disparities, and improve public safety. Carefully tailored supervision, reminders about court dates, diversion programs, and support services are promising ways some jurisdictions are working to improve outcomes.

Having an attorney is crucial for defendants at the pretrial release stage. Public defenders and court-appointed lawyers help ensure defendants understand the charges against them, their rights and options, and the consequences of violating release conditions. Attorneys argue for reasonable, affordable bail and pretrial supervision plans tailored to the individual client. Legal aid also helps people at risk of detention due to poverty to pay bail or bond fees they otherwise couldn’t afford. Quality legal representation is key to making pretrial release fair and effective.

The Bottom Line

Pre-trial release allows defendants to fight their criminal cases without being jailed the entire time before trial. If the court decides to release a defendant, conditions of release are imposed to reasonably ensure the person comes back to court and doesn’t threaten public safety. Bail, supervision, electronic monitoring, drug testing, stay away orders, and other rules provide accountability. 

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