Pretrial Release of Felony Defendants in State Courts

Between 1990 and 2004, 62% of felony defendants in State courts in the 75 largest counties were released prior to the disposition of their case. Beginning in 1998, financial pretrial releases, requiring the posting of bail, were more prevalent than non-financial releases. This increase in the use of financial releases was mostly the result of a decrease in the use of release on recognizance (ROR), coupled with an increase in the use of commercial surety bonds. These findings are from a multi-year analysis of felony cases from the biennial State Court Processing Statistics (SCPS) program, sponsored by the Bureau of Justice Statistics.

Among defendants detained until case disposition, 1 in 6 had been denied bail and 5 in 6 had bail set with financial conditions required for release that were not met. The higher the bail amount set, the lower the probability of release. About 7 in 10 defendants secured release when bail was set at less than $5,000, but this proportion dropped to 1 in 10 when bail was set at $100,000 or more.

Murder defendants were the least likely to be released pretrial. Defendants charged with rape, robbery, burglary, and motor vehicle theft also had release rates lower than the overall average. The highest release rate was for defendants charged with fraud. Defendants were less likely to be released if they had a prior arrest or conviction or an active criminal justice status at the time of arrest (such as those on probation or parole).

A history of missed court appearances also reduced the likelihood that a defendant would be released. About a third of released defendants were charged with one or more types of pretrial misconduct. Nearly a fourth had a bench warrant issued for failing to appear in court, and about a sixth were arrested for a new offense. More than half of these new arrests were for felonies.

Logistic regression analyses that controlled for factors such as offense and criminal history found that Hispanics were less likely than non-Hispanic defendants to be released, and males were less likely than females to be released. Logistic regression was also used to calculate the probability of pretrial misconduct for defendants with a given characteristic, independent of other factors. Characteristics associated with a greater probability of being rearrested while on pretrial release included being under age 21, having a prior arrest record, having a prior felony conviction, being released on an unsecured bond, or being part of an emergency release to relieve jail crowding.

Compared to release on recognizance, defendants on financial release were more likely to make all scheduled court appearances. Defendants released on an unsecured bond or as part of an emergency release were most likely to have a bench warrant issued because they failed to appear in court. The probability of failing to appear in court was higher among defendants who were black or Hispanic, had an active criminal justice status at the time of arrest, or had a prior failure to appear.

About 3 in 5 felony defendants in the 75 largest counties were released prior to case disposition

From 1990 to 2004, an estimated 62% of State court felony defendants in the 75 largest counties were released prior to the disposition of their case. Defendants were about as likely to be released on financial conditions requiring the posting of bail (30%) as to be granted a nonfinancial release (32%). Among the 38% of defendants detained until case disposition, about 5 in 6 had a bail amount set but did not post the financial bond required for release.

From 1990 to 2004, surety bond (33%) and release on recognizance (32%) each accounted for about a third of all releases. Other release types that accounted for at least 5% of releases during this period were conditional release (12%), deposit bond (9%), unsecured bond (7%), and full cash bond (5%).

Since 1998 a majority of pretrial releases have included financial conditions

Except for a decline to 57% in 2004, the percentage of defendants released each year varied only slightly, from 62% to 64%. A more pronounced trend was observed in the type of release used. From 1990 to 1998, the percentage of released defendants under financial conditions rose from 24% to 36%, while non-financial releases dropped from 40% to 28%.

Surety bond surpassed release on recognizance in 1998 as the most common type of pretrial release

The trend away from non-financial releases to financial releases was accompanied by an increase in the use of surety bonds and a decrease in the use of release on recognizance (ROR). From 1990 through 1994, ROR accounted for 41% of releases, compared to 24% for surety bond. In 2002 and 2004, surety bonds were used for 42% of releases, compared to 23% for ROR.

Two-thirds of defendants had financial conditions required for release in 2004, compared to half in 1990

Including both released and detained defendants, the percentage required to post bond to secure release rose from 53% in 1990 to 68% in 2004.

Overall, about half (48%) of defendants required to post bail for release did so. From 1998 through 2004, 51% posted bail, compared to 45% in prior years.

The higher the bail amount the lower the probability of pretrial release

The median bail amount for detained defendants ($15,000) was 3 times that of released defendants ($5,000); the mean amount was about 5 times higher ($58,400 versus $11,600). For all defendants with a bail amount set, the median bail amount was $9,000 and the mean was $35,800.

There was a direct relationship between the bail amount and the probability of release. When the bail was under $10,000, most defendants secured release, including 7 in 10 defendants with bail under $5,000. The proportion released declined as the bail amount increased, dropping to 1 in 10 when bail was $100,000 or higher.

Defendants arrested for violent offenses or who had a criminal record were most likely to have a high bail amount or be denied bail

Courts typically use an offense-based schedule when setting bail. After assessing the likelihood that a defendant, if released, will not appear in court and assessing any danger the defendant may present to the community, the court may adjust the bail higher or lower. In the most serious cases, the court may deny bail altogether. The use of a high bail amount or the denial of bail was most evident in cases involving serious violent offenses. Eighty percent of defendants charged with murder had one of these conditions; with rape, 34%; and with robbery, 30%.

Defendants who had an active criminal justice status (13%) were about 4 times as likely as other defendants (3%) to have bail denied. Defendants with 1 or more prior felony convictions (10%) were more than twice as likely as those without such a conviction (4%) to have bail denied.

Commercial bail and pretrial release

An estimated 14,000 commercial bail agents nationwide secure the release of more than 2 million defendants annually, according to the Professional Bail Agents of the United States. Bond forfeiture regulations and procedures vary by jurisdiction, but most States regulate commercial bail and license bail agents through their departments of insurance. Four
States do not allow commercial bail: Illinois, Kentucky, Oregon, and Wisconsin. Also, the District of Columbia, Maine, and Nebraska have little commercial bail activity.
Bail agents generally operate as independent contractors using credentials of a surety company when posting appearance bond for their client. For a fee, the surety company allows the bail agent to use its financial standing and credit as security on bonds. In turn, the bail agent charges the defendant a fee (usually 10% of the bail amount) for services. In addition, the bail agent often requires collateral from the defendant.

A bail agent usually has an opportunity to recover a defendant if they fail to appear. If the defendant is not returned, the agent is liable to the court for the full bail amount. Most jurisdictions permit revocation of the bond, which allows the agent to return the defendant to custody before the court date, freeing the agent from liability. The agent may be required to refund the defendant’s fee in such cases. Courts can also set aside forfeiture judgments if good cause is shown as to why a defendant did not appear.

Commercial bail has been a target of critics since the 1960s. Some organizations, such as the American Bar Association and the National District Attorney’s Association, have recommended its abolishment. Some critics have succeeded in obtaining reforms in the release process, beginning with the Manhattan Bail Project in 1961.

This project showed that defendants could be successfully released pretrial without the financial guarantee of a surety bail agent if verified information concerning their stability and community ties were presented to the court.

The success of the Manhattan Bail Project resulted in a wide range of pretrial reforms in the Federal system, culminating in the Bail Reform Act of 1966. This Act created a presumption in favor of release for most non-capital defendants and led to the creation of non-surety release options, such as refundable deposit bail and conditional release. Many States followed the Federal system and created such release options. The Bail Reform Act of 1984 set forth new procedures which allowed the pretrial detention of defendants believed to be a danger to the community in addition to a flight risk.

The full report can be found at the following link:
Bureau of Justice Stastistics