Everything You Need to Know about Bail and Pretrial Release

Crime has steadily declined since the 1980s and 1990s, yet pretrial detention has quadrupled—today, nearly half a million people are detained without a conviction. Jails admit millions of Americans each year. Two-thirds of those detained have children, and most have an average annual income below $20,000. Of those released, research shows most individuals show up for court and remain law abiding.

What is bail?

Bail allows individuals charged with a crime to be released from jail while they await trial. The trade-off is a financial guarantee (cash) or other conditions—such as supervision, electronic monitoring, or a promise to return—to ensure they appear in court. It generally aims to balance public safety, court appearance rates, and individual freedoms.

Clarifying misconceptions: Bail, parole, and probation are sometimes confused with one another. Bail occurs after arrest but before conviction; parole and probation apply only after conviction.

Who sets bail?

Judges generally set bail, but some jurisdictions use a bond commissioner or a bail schedule. A bail schedule lists standard bail amounts for specific charges, allowing quick release without a hearing. Kentucky and some other jurisdictions use a risk-based matrix to guide decisions instead. Notably, the presence of prosecutors and public defenders at initial bail hearings also varies by jurisdiction.

Clarifying misconceptions: Only courts or their delegates can set bail. Prosecutors can request specific bail amounts, and defense attorneys can argue for alternatives, but neither determine bail. Most bail schedules are based on offense levels alone rather than a defendant’s criminal history or pretrial risk assessment.

What types of bail are there?

There are several types of pretrial release:

• Cash bail: A set dollar amount required for release. Cash bail can take several forms: all cash, secured by a bail bondsman, or unsecured (meaning payment is required only if the defendant fails to appear).
  
• Nonmonetary conditions: Requirements like electronic monitoring, curfews, drug testing, or regular check-ins help promote court attendance and lawfulness.
  
• Personal recognizance or release on recognizance: Release based on a promise to appear in court, without financial payment or other conditions.

Certain crimes do not guarantee a right to pretrial release in some states, meaning defendants may be preventively detained until trial.

Clarifying misconceptions: Bail laws vary widely state to state (and even locally), with some limiting or reforming practices and others maintaining traditional systems. This variability complicates national reporting and can lead to public misunderstanding.

How does bail from a bondsman work?

When using a bondsman, defendants typically pay a nonrefundable fee—usually 10 percent of the bail amount—for the bondsman to post bail. Bondsmen are technically liable for the full bail if defendants fail to appear, but they rarely pay in practice—even when defendants skip town or commit new crimes. Bondsmen also rarely track down individuals who violate bond conditions, leaving this responsibility to police.

Clarifying misconceptions: Only three states—Illinois, Kentucky, and Oregon—prohibit bondsmen. Wisconsin and Nebraska rarely use them, relying instead on courts to administer partial secured or cash-only bonds. As a result, cash-only bail amounts in these states may be lower than third-party secured bonds, as defendants only pay a percentage of the total.

How can someone be “held without bail”?

Being held without bail is also known as preventive detention, where individuals must remain in jail before trial. It is typically limited to the most serious offenses. To justify holding someone without bail, courts often require strong proof of guilt or evidence that the defendant poses a flight risk or a threat to public safety.

Clarifying misconceptions: While the Eighth Amendment prohibits excessive bail, it does not guarantee an absolute right to bail. As a result, states interpret this limitation differently and balance the presumption of innocence, accountability, and public safety to align with their priorities. Seventeen states limit preventive detention to capital or life-sentence offenses or prohibit it entirely. Other states have amended their constitutions to expand preventive detention, often for other serious crimes or repeat offenses. Georgia, Maryland, New Mexico, and Virginia have some of the most expansive lists of offenses eligible for preventive detention.

Why not detain everyone before trial?

Holding everyone in jail before trial undermines the presumption of innocence and raises concerns about constitutional protections against excessive bail. It is also costly for taxpayers, as jailing individuals costs significantly more than alternative options, and it increases the likelihood of reoffending (especially among low-risk defendants) due to disruptions in work, housing, and family stability.

Clarifying misconceptions: Critics often argue that cashless bail fails to hold people accountable or punish them for their actions. However, individuals on bail have not been convicted and are presumed innocent. By law, bail cannot be used as a form of punishment.

What factors do courts generally consider when setting bail?

When setting bail, courts typically consider factors like the severity of the charges, the defendant’s criminal history, their likelihood to appear for court, and their ability to pay. Some jurisdictions use risk assessment tools, which analyze data to predict the likelihood of court appearance or new criminal activity to guide bail decisions. These tools are controversial, with some states limiting or rejecting their use due to concerns about bias and reliability.

Clarifying misconceptions: States differ in considering public safety in pretrial release decisions. For example, California prioritizes public safety risk while New York considers only flight risk and court appearance. Only 23 states require the use of pretrial risk assessments; even then, judges are required to consider them but are not obligated to follow their recommendations.

How common are violent acts by released defendants?

Most individuals released before trial remain law abiding, and violent acts are uncommon. Still, judges cannot predict with certainty whether someone will commit a new offense after release. Evidence-based strategies—such as court notifications, pretrial assessments, and pretrial support—can improve court appearance rates and reduce pretrial offenses. Additionally, addressing underlying challenges—such as unmet behavioral health needs or a lack of stable housing—may contribute to pretrial success.

Clarifying misconceptions: Cases where individuals on bail commit heinous crimes often receive significant attention. However, stories of dangerous individuals with high bail buying their way out, people detained simply due to a lack of cash, or those who remain law abiding receive far less coverage. This imbalance can create the perception that such incidents are more common than they are.

What happens if someone commits a crime or fails to appear while out on bail?

If someone commits a crime or fails to appear in court after being released on bail, the court may revoke their bail and issue a warrant for their arrest. Most states allow prosecutors to file new charges, such as violation of bail, failure to appear, or contempt of court. Defendants who post bond usually forfeit any money paid, and bondsmen may be liable for the full bail amount—though this rarely occurs in practice. Some courts can also impose stricter conditions; give a punitive sanction, such as a night in jail; or deny bail if the individual is rearrested.

Clarifying misconceptions: Someone may be detained for reasons other than the initial charge, such as a probation or parole violation triggered by a new offense.

Final considerations

When incomplete or misleading narratives shape public perception, the policies that follow often miss the mark. Misconceptions can lead to ineffective bail laws that compromise public safety or waste taxpayer dollars by unnecessarily detaining low-risk individuals. Understanding the bail system is the first step toward real solutions. Ultimately, a well-informed approach helps create pretrial policies that prioritize real threats, protect individual rights, and use government resources efficiently.