Decades of research show that most people—about 80 percent—will return to court and remain law-abiding when released to the community before their trial. In most cases, they do this even if released solely on a promise to appear.
But a judicial officer may determine that conditions are necessary to assure court appearance and community safety, including victim safety. When that is the case, release conditions should be the least restrictive possible. That is, they should limit the person’s freedom as little as possible.
This video explains the legal principles when setting conditions of pretrial release.
Pretrial release conditions are not as large an infringement on liberty as pretrial detention. But they are often burdensome. Conditions can harm a person’s ability to maintain positive work, school, or family responsibilities and to participate in their defense.
Financial conditions of release are the default conditions in many jurisdictions. This is in spite of research showing that secured monetary bonds do not improve court appearance or arrest rates. And, financial conditions often result in detention. As a result, secured financial conditions should generally be considered one of the most restrictive conditions and a last resort for judicial officers—if they are considered at all.
Some see imposing conditions on everyone—and multiple conditions on most people—as “insurance for success.” But the research indicates this is counterproductive.
Ordering participation in unnecessary programming of any kind may disrupt positive activities in people’s lives. And it places them in settings with people who have more serious antisocial attitudes and habits.
Community-based and government resources are limited. Those resources should go to people with the highest need, meaning people assessed as the least likely to succeed.
Longstanding legal principles maintain that pretrial decisions should be individualized. This means that conditions should not be imposed based solely on charge or assessment scores. And judicial officers should avoid blanket conditions. Instead, they should look at the person before them and decide whether conditions of release are necessary and, if so, what those conditions are. They also must ensure that conditions offer essential help without undermining positive factors, like a person’s job, schooling, or family responsibilities.
If circumstances indicate that a recommended condition is not necessary (or, vice versa, a condition not recommended seems useful), judicial officers should use their discretion.
Stories and resources on using the least restrictive conditions: