What is Pretrial Release and How Does it Work?

Pretrial release refers to allowing a defendant to be released from jail while waiting for their trial, rather than keeping them in jail the entire time. The purpose of pretrial release is to balance the rights of the accused with public safety. It aims to reduce overcrowding in jails, lower costs to taxpayers, and uphold the presumption of innocence until proven guilty.

There are a few main types of pretrial release:

• Release on Own Recognizance (ROR) – The defendant is released without having to post any bail money, but must agree to show up to future court dates.
• Unsecured Bond – The defendant is released without paying upfront, but must pay the bond amount if they fail to appear in court.
• Cash Bond – The defendant must pay the full bail amount upfront in order to be released.
• Surety Bond – The defendant pays a non-refundable percentage fee to a bail bondsman, who posts the full bail on their behalf.

Judges have discretion in deciding the conditions of a defendant’s pretrial release. They often consider factors like:

• The nature and circumstances of the charges
• The weight of evidence against the defendant
• The defendant’s prior record and history of appearing in court
• The defendant’s ties to the community, employment, and family situations
• Public safety concerns and risk to victims/witnesses

Judges can place conditions on pretrial release to help ensure public safety and that the defendant returns for trial. Common conditions include:

• Drug testing or substance abuse treatment
• Mental health counseling
• Electronic monitoring like GPS ankle bracelets
• Curfews or travel restrictions
• Regular check-ins with pretrial services
• No contact orders with victims/witnesses

The Pretrial Release Process

The pretrial release process usually begins after a defendant is arrested and booked into jail. Here are the typical next steps:

1. Initial Court Appearance – Usually occurs within 24-48 hours after arrest. The judge informs the defendant of charges against them and considers whether to set bond/bail.
2. Pretrial Services Interview – If released, the defendant meets with pretrial services to gather information and assess risk, which informs release conditions.
3. Pretrial Release Determination – The judge reviews recommendations from pretrial services and makes a release determination. This may occur at initial appearance or a later hearing.
4. Monitoring – If released, the defendant must comply with all conditions set by the judge, which are monitored by pretrial services.
5. Court Dates – Defendant must appear at all scheduled court dates leading up to their final trial.

The Purpose and Benefits of Pretrial Release

Pretrial release serves some important purposes in the criminal justice system:

• Upholds Presumption of Innocence – Defendants are innocent until proven guilty, so pretrial detention should be limited.
• Reduces Jail Crowding – Keeps pretrial detainees who pose little risk out of overcrowded jails.
• Saves Taxpayer Money – It’s cheaper to monitor defendants in the community than detain them.
• Improves Trial Outcomes – Defendants can better prepare defense while released.
• Reduces Recidivism – Defendants can keep jobs, continue education, and stay with family.

Studies show that allowing pretrial release with appropriate conditions can help ensure public safety and court appearance just as effectively as detention, while also saving time and money for courts, jails, and taxpayers.

The Pretrial Release Debate

While most criminal justice experts agree that dangerous defendants should be detained pretrial, there are disagreements surrounding release of medium- and low-risk defendants.

Some of the key debates around pretrial release include:

• Cash Bail Amounts – How much cash bond is appropriate? Excessively high bail discriminates against low-income defendants.
• Use of Risk Assessments – What risk factors should be considered and how predictive are assessment tools?
• Victims’ Rights – Does pretrial release adequately protect victims and witnesses from harm?
• Net Widening – Do stringent pretrial conditions like electronic monitoring widen the net of government supervision?

Reform advocates say current pretrial practices often disproportionately impact minorities and low-income defendants. But others argue judges should have broad discretion to detain potentially dangerous defendants. There are good arguments on both sides, with many jurisdictions implementing new risk-based assessment tools and procedures aimed at balancing these concerns.

The Pretrial Release Process Step-by-Step

Now let’s take a more in-depth look at the step-by-step process of pretrial release after a defendant gets arrested:

1. Booking

After an arrest, police take the defendant’s fingerprints and photograph. They gather personal information like name, address, employer, and contact details for friends or family members. This information is important for assessing community ties related to pretrial release conditions.

2. Initial Court Appearance

Within 24-48 hours after arrest, defendants appear before a judge or magistrate for an initial hearing. The judge informs them of the charges against them and their rights. Most importantly, the judge decides whether to release the defendant on their own recognizance or set cash bail.

Judges consider factors like flight risk, danger to the community, and probability of conviction when setting initial bail. Many jurisdictions use evidence-based pretrial risk assessment tools to help guide release and detention decisions.

3. Pretrial Services Interview & Investigation

If the judge grants pretrial release, the defendant meets with a pretrial services officer for an interview. The officer gathers information to further assess risk and formulate release recommendations, including:

• Criminal history check
• Mental health & substance abuse history
• Residential and family situation
• Employment status
• Ties to community

They use this information to evaluate flight risk and risk of pretrial misconduct. The officer submits bond recommendations and proposed conditions to the court.

4. Pretrial Release Determination

At a subsequent hearing, the judge reviews the pretrial services recommendations and makes a final pretrial release determination. This decision sets bond amounts and any nonfinancial conditions to be imposed. Conditions that restrict liberty must have a reasonable relationship to assuring public safety and court appearance.

5. Release & Monitoring

Once any bond is posted, the defendant is released from jail to await trial. Pretrial services officers monitor compliance with all conditions of release and document any violations.

Common monitoring tactics include:

• Periodic check-ins
• Drug & alcohol testing
• Electronic monitoring
• Treatment program enrollment

If violations occur, officers can request bond revocation or stricter release conditions. Defendants arrested on new crimes while on pretrial release face additional charges.

6. Court Dates & Trial

Leading up to the trial, defendants out on pretrial release must attend all scheduled court dates, like pretrial conferences and motion hearings. Skipping court dates may result in arrest warrants or bond revocation.

On the trial date, the defendant must appear to face the charges against them. If found not guilty, they are free with no penalties. If found guilty, the judge determines sentencing based on statutes and sentencing guidelines.

Pretrial Detention Hearings

If a judge denies pretrial release at the initial hearing, defendants have a right to request a pretrial detention hearing. At the hearing, defendants can challenge the need for detention and courts must justify denying release.

Courts may order pretrial detention if:

• The defendant is charged with a capital crime or violent felony;
• There is a serious risk the defendant will flee;
• There is a serious risk of obstruction of justice;
• The defendant threatens, injures or intimidates a prospective witness or juror.

Both prosecution and defense have a right to present information to argue for or against pretrial detention. Clear and convincing evidence must support a detention order.

Violating Pretrial Release Conditions

Defendants must follow all conditions set by the court during pretrial supervision. Failing to comply can result in new criminal charges or bond revocation.

Common pretrial release violations include:

• Failing drug/alcohol tests
• Missing appointments with pretrial officer
• Disabling electronic monitoring devices
• Traveling outside geographic restrictions
• Getting arrested for a new offense
• Contacting victims or witnesses

Even technical violations could cause restrictions to be tightened or pretrial release fully revoked. A bond revocation hearing occurs for judges to reconsider detention based on the violations.

Key Factors in Pretrial Release Decisions

Judges have significant discretion in determining conditions of release that “reasonably assure public safety and return to court.” Key factors considered include:

Nature of Charged Offense

More serious lead to greater risk, with violent offenses more likely to be denied release. Even some misdemeanors like domestic violence may be cause for concern.

Weight of Evidence

Strong prosecution evidence means higher probability of conviction, which factors into flight risk decisions.

Potential Sentence Length

Long potential prison sentences create incentive to flee and not return to court.

Prior Criminal Record

Extensive records could indicate recidivism risk. But there are debates around weighing racial biases in records.

History of Missed Court Appearances

Prior failures to appear are highly predictive of future risk. But reasons matter, as poverty, transportation issues, or childcare problems could be mitigating factors.

Employment & Community Ties

Steady jobs and family connections provide incentive to stay in community and return to court.

While these factors guide decisions, research shows current offense and criminal history matter most in weighing risk. Pretrial risk assessments are structured around these key elements.