The judge will consider whether, and to what extent, there should be conditions on the defendant’s release while the case moves along. This decision is often made at the defendant’s initial appearance, but could be reevaluated at later stages of the process. It is important to recognize that the purpose of holding a criminal defendant in jail during the pendency of a criminal case is not a form of punishment. A criminal defendant has not yet been convicted of any crime and therefore the purpose of pre-trial detention is only to ensure that a defendant, who may pose a flight risk or risk of public harm, returns to court.

The judge makes pre-trial detention decisions by weighing a variety of factors such as the nature and severity of the crime, the danger the defendant poses to public safety, the defendant’s background and arrest history, and the weight of the prosecution’s evidence, all to determine whether the defendant poses a risk of flight and which conditions are likely to secure his/her appearance at future court dates.

The judge may:

• release the defendant without any conditions other than the promise to return for the subsequent court dates (referred to as release on one’s own recognizance or ROR); or
• impose conditions on the defendant’s release such as:
  • paying an amount of bail which is held as collateral to ensure the defendant returns to court (bail can be in the form of cash, property, or through a bondsman);
  • electronic monitoring; or
  • surrender of the defendant’s passport; or
• In some very serious cases, the defendant can be ordered held in jail without the option of release (held without bail or remanded) while the criminal case is pending.

The procedures the court will follow for considering the defendant’s pretrial release or detention are largely jurisdiction-specific. Consult your agency’s state-specific supplemental guide for local law and practice regarding pretrial release and detention.¹