Navigating Bail Reform in America: A State-by-State Overview

As discussions around criminal justice reform intensify nationwide, nothing has gained more traction than the consequences and complexities of pretrial detention and release. Bail—the process of detaining or permitting the release of an individual before trial—is a tool used to balance freedom, accountability, and safety within our criminal justice system. While the U.S. Constitution provides guardrails around the use of bail, the specifics of its implementation largely fall to each state. As a result, bail laws are a vast patchwork of different approaches stretching across the nation, influenced by many different political landscapes. This patchwork makes it difficult for experts and policymakers to accurately compare laws or understand how new legislation or proposed reforms may affect communities.

The diverse approaches and political landscapes of individual states also means that bail reform debates vary wildly from one jurisdiction to another. Views range from calls to dismantle an unjust system to concerns that pretrial release is causing a surge in crime. Public sentiment, law enforcement perspectives, politics, and current events all contribute to shaping these local discussions. Some states have enacted comprehensive reforms, whereas others continue to grapple with specific issues. The political dimension of the debate is especially significant, with some stakeholders resisting reforms that could impact their interests or be perceived as “soft on crime.”

Ultimately, bail reform is both a legal and a deeply political issue. To support discussions around bail system changes and pretrial success, it is essential to understand the current state of bail laws across the United States. This study analyzes constitution, statutory laws, and court rules in effect, beginning by defining key terms, then by building key arguments: First, by outlining a brief history of bail in the United States as a precondition of understanding how issues have changed over time. Next, we highlight important stances in the current political landscape around bail reform and drawing these disparate narratives alongside one another to demonstrate the need for comprehensive and thoughtful reform efforts that focus on the principals of justice and safety. Next, in performing a one of a kind state-by-state analysis of bail practices, we breakdown pretrial laws and provide an easy to use comparison to help legislators, state officials and researchers learn from each state’s tools and tactics. After shedding light on current practices, this paper concludes by highlighting common themes to promote fairness and effectiveness as well as areas of opportunity moving forward.

Ability to Pay: The financial capacity of an individual to afford a monetary condition of bail.

Arrest Warrant (Warrant): A court order, based on probable cause, requiring the arrest of an individual alleged to have committed a crime.

Bail or Bond: Although these terms are often used interchangeably, bail generally refers to the process of release, whereas bond refers to the mechanism used to ensure defendants will show up for court to face the charges against them and other state identified purposes.

Bail Risk Factors (Bail Factors): Various characteristics and circumstances—such as the severity of the alleged crime and the defendant’s criminal history and ties to the community—that are considered when determining pretrial release and the conditions of that release.

Bond Schedule: A predetermined list of monetary bail conditions or amounts set for specific criminal offenses. Bond schedules are generally based on the level of offense alone, but the term will be expanded herein to include other tools used to create predetermined bail conditions, such bail matrices that include other bail risk factors.

Cash Bail: A type of secured bond or monetary condition that can be posted by the defendant themselves or by someone on their behalf. For purposes of this paper, “cash bail” will be included in the definition of “secured bond.”

Citation or Summons: An appearance ticket issued to notify someone of their court date, often used in lieu of arrest or continued custody.

Commercial Bond: A for-profit entity providing surety for a defendant’s bond. Generally, these entities receive a nonrefundable, 10 to 15 percent portion of the bond amount set by the court.

Delegated Release: When the court grants authority to another entity—such as law enforcement, bond commissioners or court clerks—to set bond before a defendant’s first appearance in court.

Failure to Appear (FTA): When a person fails to attend a scheduled court hearing as required by court order, potentially leading to legal consequences such as an arrest.

First Appearance (aka Initial Appearance): The initial hearing in court when a defendant is informed of the charges against them and their rights. This is generally when pretrial release decisions are made.

Least Onerous Conditions: The requisite of imposing the least burdensome conditions on a defendant’s release to reasonably ensure their court appearance and/or uphold public safety.

Least Restrictive Condition: The principle of imposing the minimum necessary conditions or limitations on a defendant’s freedom while reasonably ensuring their appearance in court and/or upholding safety to the public.

Monetary Conditions: The requirement of paying a specified amount of money to the court to secure release from custody before trial. This could be in the form of a secured or unsecured bond.

Nonmonetary Conditions: Court-imposed requirements, such as travel restrictions or mandatory check-ins, imposed on a defendant’s release that do not involve posting money as collateral.

Partially Secured Bond: A bond that is partially secured and partially unsecured. Under this type of bond, a defendant can pay a percentage of the monetary bail set as a deposit with the court—typically 10 percent—and is responsible only for the remainder of the bail amount if they fail to appear or break another condition of bail.

Pretrial Risk Assessment: A tool to determine a defendant’s likelihood of appearing in court or committing a criminal offense if released. These tools aim to make bail decisions more data-driven and objective.

Pretrial Services or Supervision: A program that can provide risk assessments or oversee the supervision of a defendant on pretrial release. For the purposes of this paper, pretrial services will refer to the supervision on release.

Pretrial Support: Various services and resources provided to defendants who are on pretrial release, aiming to help them address underlying issues, such as behavioral health challenges or basic needs, to increase compliance with bond conditions and achieve successful pretrial outcomes.

Preventive Detention: Holding a defendant in jail before trial without the opportunity to post bail, generally because of concerns about flight or safety risk. Note: If a state does not allow the death penalty, then preventive detention for capital offenses may not be applicable.

Presumption: A legal inference that a court can make unless other facts lead them to the contrary.

Rebuttable Presumption: A legal assumption that something must be true unless proven otherwise with evidence, placing the burden of proof on the opposing party to provide contradictory evidence, which, if not presented satisfactorily, results in the presumption being accepted.

Release on Recognizance (ROR) (aka Personal Recognizance or Own Recognizance): Release from custody based on a promise to appear in court, without the need to post a secured or unsecured bond.

Secured Bond: A type of bail where the defendant or someone on their behalf provides the court with a specified amount of money or property as a guarantee that the defendant will return for their scheduled court appearances and comply with any other conditions set by the court. If the accused complies with all the court requirements and attends all the necessary court hearings, the bail amount is returned at the conclusion of the case. Although commercial bond is a type of secured bond, for purposes of this paper, it will be labeled separately as “commercial bond.”

Standard of Proof (Standard): The degree or level of evidence and persuasion required to establish a fact or claim in a legal proceeding. It varies depending on the decision, with “beyond a reasonable doubt’ being the highest standard in criminal cases and “preponderance of the evidence” meaning more likely than not.

Unsecured Bond: A defendant’s promise to pay a specified amount if they fail to appear in court, without requiring an upfront payment or collateral.

The concept of bail has evolved over the centuries, shaped by changes in legal paradigms and societal values. Its history sheds light on the intersection between individual rights, public safety, and the presumption of innocence.

The American bail system is derived from English common law, which developed a system to ensure defendants would show up for court and emphasized the principle that pretrial detention should be the exception rather than the rule. This principle found its way into colonial America, where early American colonies adopted English bail practices, as they reflected the value of safeguarding individual liberty unless a person posed a genuine risk.

In the late 18th century, shortly after the inception of the U.S. Constitution, the Eighth Amendment was ratified with broad support. It prohibited excessive bail, cementing the importance of reasonable bail conditions. This highlighted the country’s commitment to protecting the inherent right of individuals to be presumed innocent until proven guilty. In 1868, the Fourteenth Amendment extended the protection of these rights to state governments, and many states memorialized these concepts in their state constitutions as well. However, the U.S. Supreme Court later clarified that there is no absolute right to bail.

As the 20th century unfolded, the U.S. bail system encountered new challenges. The rise of commercial bail bond businesses introduced financial interests into the equation, and there was growing criticism of the frequent and unnecessary detention of individuals who could not afford monetary bail conditions.

To address these issues, reforms like the 1966 Bail Reform Act aimed to shift the focus from financial means to risk assessment, seeking a fairer and more equitable approach. Although the act only affected federal bail, it created pressure on states and localities to follow suit. A groundbreaking initiative known as the Manhattan Bail Project also launched in the early 1960s. This project pioneered a new approach to pretrial release by assessing individuals’ risk factors more holistically. It also sought to provide nonfinancial alternatives to detention. The project’s innovative strategies paved the way for a broader conversation about balancing the rights of the accused with the need for public safety.

In the 21st century, the echoes of these historical transformations continue to resonate in the ongoing bail reform movement. Across the United States, jurisdictions are reevaluating bail systems to align with fairness, equity, and the presumption of innocence. Some stakeholders are calling to remove monetary conditions of bail in favor of a system that no longer bases release or detention solely on one’s ability to pay. This reexamination of the fairness of the bail system has resulted in efforts to dismantle the class-based structure inherent in the current system. Notable examples include the implementation of evidence- based risk assessment tools, the exploration of alternatives to cash bail, and Illinois’s revolutionary Pretrial Fairness Act that eliminated cash bail. Conversely, a counterforce is emerging, fueled by concerns over gun violence and frustrations regarding repeat offenders, making some elected officials feel compelled to succumb to pressure to adopt a “tough on crime” stance.

The current political discourse on bail reform encompasses a range of issues, touching on individual rights, public safety, and socioeconomic disparities. Proponents of bail reform argue that the current cash bail system disproportionately affects low-income individuals, subjecting them to pretrial detention based solely on an inability to access resources. This emphasizes the need to address socioeconomic disparities and ensure that pretrial release is untethered from financial means. This issue is further exacerbated by documented practices in which defendants accept plea deals solely to secure release, even when they maintain that they are innocent. These realities contradict the presumption of innocence and the prohibition against excessive bail while also exposing the unconstitutional nature of the current system.

While some advocates push for the complete abolishment of cash bail, others focus on minimizing its use as they work to implement tools to uphold public safety. The commonalities in these two approaches to bail reform have led to increases in pretrial assessments, pretrial programs, and legislative guidelines for release. These changes promise more effective ways to ensure defendants appear in court and mitigate public safety risk without unnecessary incarceration. However, even some of these approaches have caused debate.

Opponents of bail reform express concerns about releasing individuals who do not have a financial stake in their court appearance, particularly those accused of serious offenses or with repeated criminal behavior. They argue that removing cash bail may increase risks to public safety.

Because it is unconstitutional to impose excessive bail to detain someone, the crux of the debate must center on whether monetary bail serves as an effective deterrent to flight, or impacts an individual’s safety risk status. Research shows that financial incentives resulting from monetary bail conditions do little to curb the risk of flight or improve safety. Critics of such incentives argue that risk assessments can more accurately evaluate the potential danger posed by a defendant, irrespective of their financial situation. Further, nonmonetary conditions—such as electronic monitoring or court notifications—or pretrial support can more effectively ensure an individual’s court appearance without penalizing those who cannot afford bail.

Other arguments against alternatives to pretrial detention and use of cash bail focus on potential strains on court resources and the logistical challenges of setting up new systems. Yet proponents of such reforms contend that these measures can streamline court processes and reduce the cost and negative outcomes of unnecessary detention.

The extent and nature of the bail reform debate varies by jurisdiction, with some states taking action and others refusing to take part in the discussion. Bail bond companies and some law enforcement agencies add a layer of complexity to the discourse, as they are often depicted as resisting reforms that could disrupt their revenue streams or loosen their control over defendants. Policymakers, while recognizing the merits of reform, sometimes grapple with concerns about appearing “soft on crime,” contributing to the political dimension of the debate.

These conversations have become more nuanced in recent years as they expand to include the potential for inherent discrimination in pretrial risk assessments, where critics worry that certain factors used in these assessments might inadvertently perpetuate biases or inequalities in the criminal justice system. Furthermore, debate has ensued over the best entity to operate pretrial supervision programs and how oversight might influence the effectiveness and impartiality of programs. Finally, there is a growing debate regarding the types of offenses that should be eligible for preventive detention or personal recognizance, with stakeholders deliberating over where to draw the line between public safety and individual liberty.

Examples of the scope and breadth of these debates can be seen across the nation. California’s Supreme Court mandated that courts consider an individual’s ability to pay bail—a factor absent in California law or court rules. In contrast, Delaware’s high court upheld the pretrial detention of an individual who could not afford bail, despite the state’s constitution permitting preventive detention solely for capital offenses. In Iowa, the governor rejected an effort to implement pretrial risk assessments. In Louisiana, defendants are entitled to attorneys at their first appearance but rarely get them. Meanwhile, in states like Indiana, actions by the legislature to change constitutional bail provisions is still pending approval by the voters, reflecting the complex and multilayered nature of bail system changes.

In this complex landscape, comprehensive and thoughtful reform efforts are essential to address the myriad issues associated with the bail system and their impact on individual rights, public safety, and socioeconomic disparities. The ongoing debate underscores the importance of finding a balanced and smart solution that respects the principles of justice and equality upon which the legal system is built.

To support the discussions around safe bail system changes, a current understanding of bail laws from state to state is necessary. By examining bail laws across different states, policymakers and legal experts can identify best practices and successful strategies for pretrial release. The comparative analysis contained herein is designed to help states learn from one another’s initiatives and outcomes and consider policies that have proven effective in ensuring both public safety and fairness. It can also help states avoid potential pitfalls and unintended consequences. By examining what has not worked in other jurisdictions, states can make informed decisions to avoid implementing policies that may lead to excessive detention or compromise individual rights.

For this analysis, we have included statutory laws that are in effect or that have been enacted with future effective dates after Oct. 1, 2023 and court rules. Notably, some states rely heavily on statute to direct their pretrial process, whereas others rely on court rules. Court cases creating legal precedent were not included in this analysis; however, this analysis attempts to note any state laws that a given state’s supreme court found unconstitutional. This analysis was not able to capture details and nuances in their full complexity of that law. Please reference the cited statute for specifics about each law.

To facilitate the comparison of laws state-to-state, we have devised the following rubric to classify the statutes and rules.

An in-depth analysis of bail reform laws across all 50 states reveals several key themes that shed light on the evolving landscape of pretrial justice in the United States. These themes encompass a wide spectrum of approaches, from reducing the reliance on cash bail to enhancing public safety measures, and offer valuable insights into the complex and nuanced discussions surrounding bail reform. Promising themes are discussed below.

Expanding Immediate-Release Options

Most states offer some form of immediate release, whether it be through delegated release authority, bond schedules, warrants with fixed conditions, or citations in lieu of continued custody. Expanding pretrial release before a defendant’s first court appearance is crucial when aiming to minimize the adverse effects of pretrial detention, which can lead to higher rates of reoffending. Additionally, it helps prioritize jail and court resources, alleviating overcrowded facilities and court congestion. This shift toward more expeditious pretrial release decisions does not alter the consideration of risk, but rather ensures that individuals who would eventually be released are not penalized before due process. States can also increase the accuracy of risk predictions by using evidence-based risk assessments during these early stage release decisions, yielding better results than considering offense levels alone.

Establishing Defined Time Limits to Set Bail

While nearly all states designate some type of required timeframe for a defendant to appear before a judge for bail consideration, only some specify a concrete time limit. The phrase “without necessary delay,” which is used in many states, lacks clarity and invites a variety of interpretations. Introducing a defined time limit of 24 to 48 hours ensures a swifter delivery of justice, preventing unnecessary delays in future court proceedings. Similar to immediate-release options, this approach reduces prolonged pretrial detention, protecting the presumption of innocence and curbing the negative effects of incarceration. Moreover, it enhances transparency and accountability in the criminal justice system, fostering public trust and confidence. Clear timeframes also promote efficient case management while respecting the legal rights and dignity of unconvicted individuals. While some states may express logistical concerns about meeting expedient timeframes, they can draw on the experience of other jurisdictions that have implemented these procedures to identify strategies to meet such requirements.

Implementing Mandatory Pretrial Risk Assessments

Pretrial risk assessments are prominent in many communities, but few states have implemented statewide use. Often, this can be to the detriment of smaller, more rural areas that struggle with a lack of resources and technical assistance needed to use such tools. Requiring a pretrial risk assessment for all defendants promotes fairness by ensuring that bail decisions are based on objective data rather than subjective judgments, reducing the potential for bias and discrimination. It also enhances public safety by identifying individuals who pose a genuine risk and need stricter supervision or detention while releasing lower-risk defendants, thus optimizing resource allocation within the criminal justice system. Notably, the mandatory use of pretrial risk assessments does not have to be imposed through legislation. In Nevada, the Supreme Court issued such a mandate through a court order. Other considerations for meaningful pretrial risk assessment policy changes include validating and reviewing risk assessments for prejudice, as was done in California and Pennsylvania.

Requiring a Mandate or Presumption of ROR:

Several states have incorporated language that requires judges to grant defendants release on personal recognizance or unsecured bonds unless there is a risk of flight or a safety concern within the court’s discretion. This framework upholds the fundamental principles that individuals should not be assumed guilty or dangerous, but rather presumed innocent until proven otherwise. It also contributes to a more equitable system by removing financial barriers to release, particularly for low-income individuals. It ultimately promotes a more just and consistent approach to pretrial proceedings by respecting an individual’s right to liberty. Additionally, the framework is more cost effective than pretrial detention while still allowing for bail conditions to ensure court appearance or public safety when necessary. Pretrial risk assessments can improve the accuracy of identifying who is suitable for release without conditions, easing potential safety concerns.

Setting Least Restrictive/Least Onerous Conditions

While these terms differ slightly, they are, in essence, the same. This concept protects against unwarranted government deprivation and ensures that protective measures are minimally disruptive to an individual’s life. Similar to presumptions of release on recognizance, these types of guidelines safeguard individual rights, minimize financial burdens, and help avoid overcrowding in jail facilities. Importantly, this approach does not eliminate tools to address flight or safety risk; instead, it requires an intentional and individualized assessment of imposing conditions that could negatively affect a person’s life. Some experts believe this practice also helps avoid constitutional challenges.

Considering and Reconsidering Ability to Pay

The consideration of a defendant’s ability to pay bail, or at the very least their financial resources, is already a factor in many states when determining bail. This approach is not only logical but also essential in preventing the unconstitutional practice of imposing excessive bail.77 By considering an individual’s financial capacity, courts can ensure that bail amounts are reasonable and do not disproportionately burden low-income defendants, thus avoiding the inadvertent criminalization of poverty. Further, automatic bail reconsideration for in-custody defendants unable to afford bail is essential for safeguarding rights and ensuring fairness in the criminal justice system. States can make sure that a reconsideration of monetary conditions of bail are done as a matter of right, rather than request, when a defendant remains incarcerated.

Establishing Statewide Pretrial Services

Many communities have established their own pretrial services programs, but few states have created statewide systems. This often results in pretrial supervision resources in urban areas but limited options in rural regions. Implementing statewide pretrial services can yield cost savings through economies of scale and shared technical support. Furthermore, it enhances public safety by providing a structured system for supervision of a defendant no matter where the crime is committed or where the defendant resides. However, it is crucial for such programs to be well designed, adequately funded, and not overused to achieve these benefits and avoid potential pitfalls. Research shows that pretrial supervision can be effective, but it may have unintended negative consequences if it is unnecessarily burdensome or overused. Therefore, it should adhere to least restrictive or least onerous limits.

Expanding Preventive Detention

Several states restrict preventive detention to capital offenses, but those that have curtailed the use of cash bail often include a broader range of offenses eligible for continued custody, as seen in Illinois and New Jersey. Expanding the types of offenses eligible for pretrial detention provides a legal mechanism to detain high-risk offenders charged with serious or violent offenses, reducing potential threats to society. It also acknowledges that excessive bail should not be used for detention. However, establishing high levels of standard proof and requiring that detention be used as a last resort is crucial to prevent the erosion of individual rights and the excessive use of pretrial detention for less serious offenses.

The future of the bail system is likely to involve continued efforts to move away from secured bail and toward expanded release while incorporating pretrial safety tools. Advances in technology and data analysis could also play a role in improving the accuracy of risk assessments and encouraging court appearances and public safety upon release. However, fearmongering, political dynamics, and the evolving public sentiment on the prioritization of societal values will likely continue to strongly influence future reforms. Additionally, there are promising but less common opportunities for improving the bail system, which are outlined below.

Incorporating Needs Assessments and Pretrial Support

States should integrate both needs and risk assessments for bail considerations to offer a more comprehensive picture and effective framework to achieve pretrial success. This approach allows for more informed bail decisions and expands the array of support options beyond court-mandated conditions. Addressing a defendant’s needs and risk through pretrial support has also proven to be effective.80 For example, if substance abuse is identified as a need, providing information about treatment programs, as opposed to just mandating testing, may more effectively reduce the risk of reoffending. Likewise, addressing transportation needs to attend court could reduce failures to appear. By acknowledging and addressing factors such as mental health, substance use, housing stability, transportation, and childcare challenges, the criminal justice system can better promote court appearance rates and law-abiding behavior. This personalized and humane approach can ultimately lead to cost savings and decreased recidivism rates.

S

Adopting Statewide Pretrial Services

States should make pretrial services programs as commonplace as probation or parole. Pretrial services can seamlessly integrate needs and risk assessments while facilitating vital connections to services for defendants to mitigate flight and safety risks. Under delegated release authority, these programs can promptly release low-risk offenders through citation in lieu of continued custody or identify nonmonetary support conditions for medium-risk offenders to be released on their own recognizance. With a well-structured process, these decisions could be made more consistently and expeditiously, limiting the need to gather an entire courtroom. Ideally, pretrial release programs should be administered by an agency outside of the criminal justice system to honor the presumption of innocence. The programs should primarily offer court notifications, voluntary support services, and referrals but can also facilitate enforcement of the least onerous bail conditions necessary to ensure court appearance or safety. However, it is imperative that pretrial supervision be subject to the least restrictive condition framework to avoid “net widening” that would place an undue burden on defendants.

Limiting Cash Bail While Expanding Preventive Detention

The criminal justice system is tasked with holding individuals accountable for their criminal actions, but the system must do this while also protecting defendant rights and maintaining public safety. Although limiting the use of secured bonds is necessary to rectify the system’s wealth-based disparities, the court must still possess access to a variety of tools to ensure safety and accountability. Preventive detention must remain an option for courts to use to address flight and safety risk. Although it is rare for individuals who are released on bail to commit violent crimes or deliberately avoid prosecution, courts must still protect against these possible events. Therefore, states should be able to expand their ability to hold defendants in custody for more than just capital offenses. However, if given the ability to do this, stringent limitations must be imposed to ensure that detention is used only when necessary and as a last resort. Any expansion in the offenses eligible for preventive detention should also be coupled with the requirement of “proof of guilt is evident or presumption is great” and “clear and convincing evidence” of the risk of nonappearance or danger to others or the public. Further, courts should be required to consider least restrictive alternatives to ensure appearance and safety before ordering detention. While the reduction of cash bail is a vital step toward establishing a fairer and more just system, the expansion of preventive detention eligibility is what will ultimately lead the justice system safely toward that goal.