What is pre-trial release?

Pretrial release is where a defendant is released from jail while the criminal case is pending. The release usually begins with a bond. A bond is a contract where a defendant pays to get out of jail. There are three main types of bonds: own recognizance or personal recognizance (PR bond), surety, and cash. Personal recognizance is where a defendant is released on the promise that he will show up later for court. Anyone who has signed a traffic citation has technically signed a PR bond because they are not required to post any funds, but are released solely on their word that they will appear at traffic court.

The same concept applies to higher criminal charges. A cash bond is where a defendant must post the entire amount of the bond in cash. Some jurisdictions take credit cards, but many are still on the cash or check only method. A surety bond is where someone else posts your bond for you. A judge can order a PR bond or other type of bond. However, most states prohibit courts from limiting bonds to cash only bonds. For states with more intensive pretrial release programs, the posting of the bond is only the first step.

Pretrial Release Conditions

Every state has its own set of rules for pretrial release. Even within states, pretrial release programs vary by county. Some programs focus more on general conditions of bond to insure certain objectives while a defendant is on bond. These pretrial objectives can include protecting the community from crime, providing for the safety of the victim, and ensuring the appearance of the defendant at later court dates. General bond conditions tend to focus on the nature of the offense. For example, pretrial release conditions for assaultive offenses include no contact with the victim and not being able to travel to certain locations. For DWI charges, a defendant may be ordered to install an ignition interlock device while the defendant is on pretrial release.

Some pretrial release programs are even more intensive. Even though not yet convicted of a crime, many defendants feel like they are on probation while on pretrial release. In these jurisdictions, a defendant could be required to report weekly, submit to regular drug testing, submit a DNA sample, and attend counseling. More intensive pretrial release programs frustrate defendants because they are required to submit to conditions without a warrant or a finding of guilt. Regardless of this frustration, many defendants are eager to get out of jail on pretrial release.

Defendants are usually referred to pretrial release during arraignment. However, many defendants languish in jail after arraignment either because the Magistrate forgets to set a bond, or sets the bond so high that they could not afford to post it. If a defendant needs any change in bond conditions or amounts, he should file a motion or request with the court for a hearing to set bond, to reduce the bond, or to change bond conditions. 

If a defendant wants to prevail successfully argue he should be released on bond, he should be prepared to attend the hearing with evidence of the efforts he made to make bond, his plan to insure good transportation after release, and why he is not a flight risk. Defendants who want to apply for pretrial release should fully understand the requirements and expectations of the pretrial release program in their jurisdiction.

Advantages and Disadvantages

Even though the purpose of pretrial release is to allow a defendant to be out while his case is pending, in all practicality, pretrial release is a preliminary version of probation. Some states use actual probation officers to monitor the pretrial release programs. A defendant’s success, or lack of success, can influence a judge’s decision later during sentencing. If a defendant performed well while on pretrial release, he would have proof that he was capable of complying with any probation conditions and that he was a good candidate for being rehabilitated. If a defendant failed to comply with his pretrial release conditions, a judge then has proof that the defendant may not be serious or capable of rehabilitation and improvement and may be unlikely to issue probation in lieu of incarceration at sentencing.

Pretrial release is a double edged sword. Before a defendant requests a pretrial release, he should understand the conditions so that he knows what is expected. A defendant should also consider his long term objectives. If a defendant knows he is going to do prison time, then he may just want to sit in jail while his case is pending. Most jurisdictions will give defendants jail credit towards the sentence for the time they actually sat in jail before they were sentenced. However, they do not usually give jail credit when a defendant is out on pretrial release.