Pretrial Release in the United States

Practice of allowing an accused to remain free pending trial. Pretrial release is consistent with the presumption of innocence. The alternative to pretrial release is detention in a local detention facility until guilt or innocence is adjudicated. Pretrial release may take one of several forms. A common means is the posting of bail. A person released on bail pays an amount of cash (or the equivalent in property) to the court as a guarantee that he or she will appear at all subsequent proceedings up to and including the trial. If all appearance obligations are met, the cash or property bond will be returned. If an accused does not have sufficient cash or property, someone else may cover the required amount. A third party hired to do so for a fee is a bail bondsman. The amount of cash or property it will take to secure release is determined by a judicial officer. The principal considerations involve seriousness of the charged offense, prior criminal record of the accused, and the probability of additional criminal conduct if the accused is released. While most states create a general right to bail, people accused of certain crimes may be categorically denied pretrial release. The U.S. Constitution only prohibits “excessive” bail. Excess has been held to mean the imposition of pretrial release conditions beyond what is necessary to ensure subsequent appearance.

See Also

Pretrial Detention (Criminal Process) Release on Recognizance (Criminal Process).

Analysis and Relevance

Pretrial release allows an accused to retain his or her freedom prior to adjudication of charges. Several benefits result from obtaining release. It has been shown statistically that those people released before trial obtain more favorable outcomes in their cases than those who are detained. This is especially true if the person is convicted because probation is a more likely sentence for an offender who has been able to maintain employment during the pretrial period. A person on release is also able to maintain family contacts and possibly able to assist counsel more effectively in preparing a defense. In addition to the presumption of innocence rationale, pretrial release also reduces the number of people who must be housed in already overcrowded detention facilities. The critical objective of the pretrial release process is to ensure subsequent appearance by the accused. This view directly conflicts with that which says that the bail process ought to be used to safeguard community security. What we have in the United States is something of a compromise between the two positions. The pretrial release system has been substantially reformed since the 1960s with particular attention directed toward the economic inequities of bail. The reforms have essentially three forms. First, a number of jurisdictions permit officers to issue citations to minor violators instead of taking them into custody. Second, many jurisdictions permit people to obtain release by making a deposit, usually ten percent, against the bail amount. This reduces the amount of cash needed and also allows defendants to get around the nonreturn- able fees charged by bail bondsmen. Third, those accused may be released on their own recognizance. Instead of posting money or property, an accused may be released because there are sufficient family or work-related factors to minimize the likelihood of flight. Release on recognizance tends to be limited to those charged with nonassaultive offenses.

Notes and References

1. Definition of Pretrial Release from the American Law Dictionary, 1991, California