R Street Institute
Real Solutions

10 Practical Ways to Improve State Bail Systems

by Lisel Petis
Oct 5, 2026
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issues: Bail System Changes, Criminal Justice and Civil Liberties, Pretrial, State Policy

Many practitioners within the criminal justice system agree that their bail system is far from perfect. Subsequently, policymakers nationwide continually look for ways to improve public safety, protect individual liberties, and ensure effective use of taxpayer dollars. But because bail systems are complex, it can be difficult to know where to start. Improving those systems does not require a sweeping reform. Targeted, smaller changes can still address specific shortcomings and improve how the system operates in practice.

Bail is decided before guilt is. At this stage, the court cannot punish a person for the charged conduct. The presumption of innocence is a fundamental principle of the criminal process: A person who has not been convicted of a crime should not lose more liberty than necessary simply because an accusation has been made. Instead, any restrictions imposed before trial must serve a limited, legitimate purpose, such as ensuring the person returns to court and, where the facts support it, addressing a risk to public safety. Courts may therefore intervene when evidence supports the likelihood of someone trying to evade prosecution or commit a new criminal offense while their case is pending. Those decisions also determine how limited public resources are used. Detention, supervision, monitoring, and other conditions all carry a cost and should be used only when the facts justify them—not as a matter of routine.

Many of the recommendations below can be implemented locally; however, state legislation can promote consistency, provide resources and technical support, and help ensure changes are implemented across jurisdictions. Not every recommendation will be appropriate for every state, either. Policymakers should understand what existing law already provides and consult experts, researchers, and practitioners to identify gaps in their state.

RECOMMENDATIONS

1. Risk Assessments

Risk assessments can give judges a more informed look at a person’s likelihood of returning to court or being arrested again. Risk assessments are most useful as one part of the release decision, helping judges identify who can be released safely and who might need conditions or detention without substituting for individualized judgment. When paired with delegated release authority (court-designated officials, such as pretrial services or jail staff, who can release eligible defendants, set bail, or defer the decision to a judge before the first appearance), they can also help expedite routine release decisions and reduce unnecessary detention and its collateral consequences.

Action: Policymakers should require courts to use a validated pretrial risk assessment at the earliest bail decision and replace offense-based bail schedules with individualized review. The assessment should never be the sole basis for detention, and jurisdictions should require initial validation and periodic revalidation to ensure the tool remains accurate for the population where it is used.

2. Needs Assessments

Needs assessments identify issues like housing instability, substance abuse, mental health needs, transportation barriers, and other circumstances that can make it harder for someone to succeed while on release. That information can help courts distinguish between needs that can be addressed through voluntary support and risks that might warrant mandatory conditions of release. These efforts have shown promise in helping overcome challenges that interfere with successful pretrial release. And existing pretrial, jail, or court staff can administer these assessments in many jurisdictions, thereby limiting the need for new personnel.

Action: Policymakers should require a needs assessment for people released pretrial when flight or safety concerns are identified and use the results to offer voluntary referrals for identified needs. Courts and pretrial agencies should maintain current community-resource lists while keeping supportive services separate from mandatory conditions unless a specific risk justifies them.

3. Individualized Release Conditions

Courts should base bail decisions on the person and the circumstances of the specific case—not a fixed schedule, charge category, or standard package of conditions. Further, courts should impose the least restrictive conditions necessary to address any identified risk. Conditions unrelated to that risk can impose unnecessary burdens and result in technical violations without improving court appearance or public safety. For example, frequent in-person reporting or routine drug testing often interfere with work, transportation, or family responsibilities when there is no case-specific reason for them. They also strain already limited resources (e.g., jail beds, supervision services) that should be reserved for those who need them.

Action: Policymakers can amend state bail statutes to require judges setting conditions of release to state on the record how each condition is tailored to an identified flight or safety risk and why a less-restrictive alternative would be insufficient.

4. Ability to Pay

If cash bail is intended to permit release while providing an incentive to return to court, demanding an amount beyond the person’s means does not serve that function; instead, it results in detention based on their inability to pay. If a person is considered a serious safety risk to the public, then a court should make an intentional decision to detain them—not set bail at an amount it hopes they cannot afford. Courts imposing financial conditions must consider whether the person can actually afford it; otherwise, the same amount could free one person while keeping another in jail, regardless of risk. Considering financial resources alone is also not enough. Ability to pay asks whether the amount is realistically within reach given the person’s income, assets, obligations, and available support.

Action: Policymakers should require courts to make an ability-to-pay determination based on income, assets, necessary expenses, and obligations to dependents before imposing money bail. They should also prohibit financial conditions from operating as de facto detention: If detention is necessary, courts should have the ability to order it directly after finding less-restrictive conditions insufficient.

5. Evidentiary Standards

Because flight and safety assessments are inherently predictive, there is no certainty. Instead, judges must decide how much evidence is enough to justify restricting the liberty of someone still presumed innocent. A preponderance of the evidence requires the court to find that a risk is more likely than not, while clear and convincing evidence requires a higher degree of confidence. The greater the restriction on liberty, the stronger the factual showing should be. Detention might also require an additional showing as to the underlying charge, such as “proof evident, presumption great,” which requires substantially stronger evidence of guilt than probable cause (the evidentiary standard for arrest).

Action: Policymakers can set specific evidentiary standards in bail statutes by specifying the burden of proof for findings of flight or safety risk when restrictive conditions, financial conditions, or detention are considered. The law should also require a separate heightened showing of “proof evident, presumption great” before preventive detention is permitted.

6. On-the-Record Findings

Judges should explain the basis for bail decisions on the record. Findings create a record for review or appeal, ensure all parties understand the decision, and require the court to connect restrictions to the risks they intend to address. A statute or court rule can require written or oral findings when the court orders detention, imposes a financial condition that may prevent release, or imposes other substantial restrictions. On-the-record findings can also reinforce other bail safeguards by requiring courts to connect release conditions to the individual case and show that the evidence meets the standard required for detention.

Action: Policymakers can require courts to create a record of the basis for release, conditions, or detention, with greater explanation as restrictions increase. Findings should identify the facts relied on, the risk addressed, and how the evidence satisfies the legal standard required for the decision.

7. Distinguish Willful Flight From Nonappearance

A missed court date does not necessarily signal intent to evade prosecution. People arrested for failure to appear most commonly cite forgetting the date, not knowing about the appearance, or lack of transportation; intentional avoidance is far less common. Those types of nonappearance may be better addressed through court reminders or other targeted pretrial support because treating them as willful flight can lead to unnecessary detention that disrupts employment, housing, and family responsibilities without addressing the reason the person failed to appear. True willful flight involves intentional conduct to evade the judicial process, warranting a more restrictive response. Clear definitions create a legal boundary between compliance failures and intentional evasion, helping courts calibrate consequences to the cause of the conduct as well as the risk it presents.

Action: Policymakers can define “willful flight” as intentional conduct to evade the judicial process and specify that a single missed court appearance is insufficient to establish it. Statutes can direct courts to consider the circumstances surrounding the nonappearance, including any pattern of missed appearances or evidence of intentional evasion.

8. Responses to Noncompliance

Not every violation of pretrial release warrants the same response. Technical violations, such as missing a supervision appointment or failing to comply with a reporting requirement, may call for a warning or modification of conditions. More serious violations may warrant a stronger response, but new charges or full revocation can be delayed or unnecessarily severe. States can authorize brief jail stays as an intermediate and prompt response. Research generally finds that the swiftness and certainty of consequences matters more than their severity.

Action: Policymakers can amend pretrial statutes to distinguish technical from substantive violations and authorize a short jail stay as a sanction for substantive violations. The law should specify the violations that qualify, require a prompt hearing before the sanction is imposed, and cap the length of the jail stay while preserving revocation for more serious or repeated conduct.

9. Systematic Review

While bail decisions are made based on the information and circumstances available at the time, those can change. For example, a person might remain detained because they cannot meet a financial condition or because new information affects the court’s assessment of risk. All jurisdictions allow bail reconsideration in some circumstances, but the process and parameters vary widely. In many cases, review occurs only when one party asks the court to revisit the decision. Periodic review provides a backstop against detention continuing by default and gives the court a scheduled opportunity to determine whether the original basis for detention still applies.

Action: Policymakers can require automatic review after a defined period of detention while preserving a simple process for either party to seek reconsideration sooner when circumstances change or new information becomes available.

10. Data Collection

Policymakers cannot evaluate a bail system without knowing how it operates in practice. States should collect enough information to understand who is released or detained, why those decisions are made, and what happens while cases are pending. At minimum, this data should include:

Action: State legislators can require courts or relevant agencies to collect standardized pretrial data and report it regularly. Statutes can specify what is collected, by whom, and how often or direct a task force to make those determinations within a set timeframe.

CONCLUSION

Improving a bail system does not always require sweeping changes, constitutional amendments, or a complete overhaul. While those approaches may be appropriate depending on how a state’s current system operates, smaller changes can address specific problems and improve how the system works in practice. States also benefit from our nation’s role as a “laboratory of democracy.” Policymakers can look to approaches already tested elsewhere and draw from existing statutory language, research, and implementation experience rather than starting from scratch.

That said, even relatively small changes should be vetted with the people who will have to implement or operate under them, including courts, prosecutors, defense attorneys, pretrial services, law enforcement, and other affected stakeholders. This does not mean everyone needs to agree; what it means is that policymakers should understand the practical implications, identify unintended consequences, and surface problems that may not be apparent on paper. Good policy benefits from hearing those perspectives before language becomes law.