Individuals are detained after getting arrested for any crime. They are held in jail, usually near the courthouse where their case will be tried, until their trial. However, it can take a while before a trial date is set, depending on the case and the courthouse.
The defendant can be released from custody while the trial is pending. The presumption of innocence under the U.S. Constitution entitles them to pretrial release. But the trial judge or magistrate judge usually decides if it’s safe to release the defendant. Each state also has its own procedures for permitting the release of an arrestee before their trial.
Options for Pretrial Release
Pretrial release is often granted by posting bail in the amount set by the judge. Bail can be paid by the defendant or through a professional bail bondsman who will loan the arrestee enough money to pay for their release. The bail bond company will require the defendant to pay a fee, usually 10 percent of the bail amount, and collateral to ensure that they’ll pay back the loan.
If the defendant has no means to post bail, they can appeal to be released on their own recognizance (OR). An OR release is commonly granted for first-time offenders and non-violent crimes. The judge often sets conditions for the defendant to make sure that they won’t leave town before their trial or participate in any illegal activity while they’re out on OR.
If the defendant can’t find a way to post bail and has been denied an OR release, they have no choice but to await their trial in jail.
Arraignment and Detention Hearing
In most jurisdictions, the arraignment or initial court appearance is the first opportunity to appeal for pretrial release. This is the hearing where the defendant first hears about the charges they’re facing.
The prosecution and defense present their evidence and arguments. After hearing both sides, the judge will decide whether the defendant will be given bail, released on their own recognizance, or remanded without bail.
The defendant can appeal the judge’s decision any time after the initial arraignment. This means that the judge can revisit their decision on the pretrial release and lower the bail amount or impose extra conditions.
Factors and Conditions of Pretrial Release
Judges consider several factors when granting any form of pretrial release:
- The severity and nature of the crime (non-violent crimes are more likely to be granted a low bail amount or OR release)
- The defendant’s criminal history
- The defendant’s ties to the community (e.g., family, employment, community participation)
The judge looks at these factors to evaluate the arrestee’s flight risk and perceived danger to the public. If the judge determines that the defendant poses potential danger to the community or is likely to leave town before the trial, they can increase the bail amount or deny pretrial release altogether.
It’s common for judges to impose additional conditions for any form of pretrial release. One universal condition of release in all federal and state criminal cases is that the defendant can’t violate any laws while on pretrial release. Other common conditions for release include:
- Refrain from traveling until their case is closed
- Abide by a curfew
- Undergo regular drug or psychological testing
- Maintain or look for employment
- Attend regular meetings with a supervising officer
The conditions of pretrial release are often related to the crime charged against the defendant.
If the defendant violates any of the set conditions, the judge can revoke their release. The defendant will go back to jail and await their trial in custody.
It’s important for the defendant to seek the legal counsel of a criminal defense attorney early in their case. Their attorney will help them create a solid defense and persuade the judge to lower the bail amount or grant them an OR release.
