What are Common Conditions of Pretrial Release?

Common Conditions of Pretrial Release

When someone is arrested and charged with a crime, they usually have to go before a judge for a bail hearing. This is when the judge decides if the defendant should be released from jail while their case moves through the court system, or if they should stay locked up until their trial. There are a few main options judges have for pretrial release:

Release on Own Recognizance

This is when the judge lets the defendant out of jail without having to pay any bail money. It’s based on the judge’s determination that the defendant is not a flight risk or a danger to the community. The defendant just has to promise that they will show up for all their court dates. This is known as being released on your own recognizance or “ROR.”

Cash Bail

This is probably the most common. The judge sets a dollar amount that the defendant has to pay to get out of jail. The money serves as collateral to make sure they come back to court. Often a bail bondsman can post the bail for a fee of like 10%, and the defendant doesn’t get that money back even if they show up for court. Cash bail has been criticized a lot because it basically criminalizes poverty. Wealthy people can easily afford to pay bail, while poor defendants get stuck in jail awaiting trial.[1]

Property Bond

Instead of cash, the defendant can post a piece of property, like their house or car, as collateral for their release. This ensures they show up, or else they lose their property. The court puts a lien on the property.

Surety Bond

This is when the defendant gets a friend or family member to co-sign on the bail amount. The cosigner promises to pay the full bail if the defendant skips out. So the cosigner’s property or money is on the hook.

Pretrial Supervision

Sometimes the judge will order the defendant to check in regularly with a pretrial services officer if they are released. The defendant usually has to call or meet with the officer weekly or monthly. This helps ensure they don’t miss court dates. Pretrial supervision is often used for defendants who are higher risk but the judge still wants to release them.

Judges have a lot of discretion when it comes to setting the conditions of pretrial release. But there are some common requirements they frequently impose:

No New Crimes

A standard bail condition is that the defendant cannot get arrested for any new crimes while out on pretrial release. If they do, it’s an automatic bail violation and they get locked up again.

Stay Away Orders

If the defendant is accused of domestic violence, stalking, or sex crimes, the judge will usually issue a stay away order as a condition of release. This means the defendant has to stay away from the victim’s home, job, etc. If they violate it, they go back to jail.

Drug Testing

For drug offenses or cases where substance abuse is an issue, judges often order random drug testing while the defendant is out on bail. The defendant has to call every morning to see if they have to go drop a urine sample that day. Missed or dirty tests can result in bail revocation.

Home Detention

Sometimes judges will order home detention or house arrest. This means the defendant has a curfew and can only leave home for specific reasons like work, school, medical appointments, attorney visits, etc. Compliance is monitored with an ankle monitor.

No Weapons

Defendants often have to agree not to possess any firearms while out on pretrial release. This is especially common in domestic violence cases or cases involving gun charges.

No Alcohol/Bars

For DUI cases, judges will prohibit defendants from drinking alcohol or going to bars while on pretrial release. Defendants in drug or alcohol treatment are often barred from drinking too.

Mental Health Treatment

If mental illness contributed to the alleged crime, the judge may order the defendant to get outpatient mental health treatment as a condition of release.

GPS Monitoring

For defendants who are a flight risk, judges may order GPS location monitoring. This allows pretrial services to keep tabs on their whereabouts at all times until trial.

Weekly Check-ins

Many defendants have to personally meet with their pretrial officer once a week or once a month. This helps keep them accountable and reminds them of their court dates.

Travel Restrictions

Judges often restrict out-of-state travel for defendants on pretrial release, or require permission for long trips. This prevents flight risks from fleeing the jurisdiction before their court date.

Bonding Company Supervision

If a commercial bail bond company posts the defendant’s bail, they will supervise the defendant themselves to make sure they comply with release conditions. The company stands to lose a lot of money if the defendant flees.

Pretrial release conditions are supposed to be the least restrictive measures needed to ensure the defendant’s return to court and the community’s safety. Excessively harsh or burdensome requirements could be challenged as a violation of due process.

But public safety is always the prime concern. Release conditions may be stringent for defendants accused of serious violent crimes or who have a history of failing to appear in court. Every case is unique.

Judges have to walk a fine line when setting pretrial release rules. They don’t want to violate anyone’s rights or unfairly punish low-risk defendants. But they also can’t take chances on releasing dangerous or unreliable defendants back into the community.

There are a few key legal precedents that shape pretrial release policies in America today:

Stack v. Boyle (1951)

This landmark U.S. Supreme Court case held that bail cannot be used to punish defendants or deliberately keep them detained before trial. Bail can only be used to ensure appearance in court. Otherwise it violates the 8th Amendment right to reasonable bail.

United States v. Salerno (1987)

This case said pretrial detention is allowed if the government has a legitimate interest in preventing danger to the community. Preventive pretrial detention is constitutional if procedural safeguards are followed.

O’Donnell v. Harris County (2017)

Here a federal court ruled that Houston’s cash bail system was unconstitutional for detaining poor defendants solely due to inability to pay bonds. This case fueled bail reform efforts nationwide.

Pretrial release conditions are still evolving and being challenged. Many jurisdictions are implementing risk assessment tools to guide judges in setting appropriate release rules.

There is also a growing consensus that cash bail should be used only as a last resort, and non-financial release options should be prioritized whenever possible.

But public safety always has to come first. There are no easy answers when it comes to deciding which defendants should be released and which ones should stay detained until their day in court.

Getting pretrial release conditions right is a delicate balancing act. The system has to protect society and victims’ rights while also preserving the presumption of innocence and due process for those awaiting trial.

With criminal justice reform efforts underway across the nation, we can expect to see continued improvements to America’s pretrial release policies and procedures for years to come.