Georgia law requires judicial approval for a person to be released pretrial under certain programs. According to Georgia Code § 42-3-74, no one can be released on their own recognizance or into a pretrial release/diversion program without written approval from a judge.
Pretrial release is designed to empty Georgia’s county jails. Georgia has one of the highest percentages of unsentenced inmates in the country. This high figure has been the subject of much criticism, particularly because Georgia also has one of the lowest jail and prison budgets in the country. So, the popular image is poor defendants languishing in substandard facilities. That image may or may not be true, but there it is.
Immediate jail release, which pretrial release makes possible, is essential for a Marietta criminal defense lawyer. If defendants remain in jail, they often take the prosecutor’s first plea bargain offer, no matter how unfavorable it is, especially if that offer includes probation. Quite frankly, if we were on the other side of the bars, we’d probably do the same thing. Pretrial release jumpstarts a criminal defense and allows a lawyer to fully develop all procedural, substantive, and/or affirmative defenses.
Overall Pros and Cons
The social justice angle may be one of the biggest pretrial release benefits. Not everyone can afford cash bail. Pretrial services help prevent a system where only wealthy people can buy their way out. Supervised release gives lower risk, lower-income individuals a more equitable chance.
Common criticisms include the accuracy of risk assessments and the burdensome nature of pretrial release conditions.
Correctly assessing risk (danger to public, flight risk) is a subjective process. Some decisions may lean too conservative or too lenient, depending on the tools and training used. Additionally, for some released defendants, supervision conditions (frequent reporting, electronic monitoring, drug testing) can be difficult to satisfy, especially if they lack transportation, stable housing, or work.
We’ll discuss risk assessments and release conditions, two basic pretrial release pillars, in depth below.
Initial Nuts and Bolts
Various judicial bodies in the state administer the various pretrial release programs in Georgia. All these programs have the same basic core principles:
- Releasing low-risk county jail inmates to reduce unnecessary pretrial detention,
- Supervising released defendants to promote public safety; the courts try to ensure they don’t commit new crimes while awaiting trial,
- Ensure court appearances by instilling accountability so released defendants come to court as required, and
- Provide early intervention and support through counseling, drug treatment, or other services.
The most important supervisory body for our purposes is the Fulton County Superior Court pretrial services division. This judicial body has a four-part pretrial release process.
First, a pretrial services officer runs a criminal background check and interviews the defendant. The personal interview usually focuses on the defendant’s ties to the community, or lack thereof (e.g. local job, local family, local residence, etc.) The background check weeds out all defendants with prior records.
Second, the officer performs a risk assessment, based on the information collected, which determines the defendant’s risk of not appearing in court or being a danger to the community. Usually, this risk assessment is based on an actuarial table that someone created.
Last, a judge uses the pretrial services report, along with other factors (mostly the ones listed above), to decide whether to release the defendant and under what conditions. These range from a promise to appear (personal recognizance) to more restrictive measures, like electronic monitoring or regular check-ins with a pretrial services officer (conditional release).
If the judge determines the defendant doesn’t qualify for pretrial release, the judge requires financial security (a financial payment or guarantee, usually cash bond or a bail bond).
If a defendant fails to comply with the court’s conditions, their pretrial release can be revoked, leading to their return to custody.
The Pretrial Release Process
The pretrial release process usually doesn’t start until the arraignment. If the defendant is in jail, this hearing usually occurs within seventy-two hours of arrest. If pretrial services evaluated the defendant and prepared a report, as outlined above, this officer and report is part of this hearing, which also includes the reading of the charges.
So, if defendants want to get out of jail sooner, and they almost all do, the only two options are a bail bond or a cash bond.
Initial Decision
At the arraignment, the pretrial services officer makes a recommendation to the judge, based on the aforementioned interview, report and assessment, about what conditions of release make sense, including whether the person can be released and under what conditions (supervision, restrictions, etc.).
The judge reviews the pretrial services’ recommendation along with arguments from prosecution and a Marietta criminal defense lawyer.
Typically, the judge orders unsecured judicial release (UJR), meaning the person doesn’t have to pay a cash bond but must comply with conditions. These conditions, which are set based on risk, may include travel restrictions, electronic monitoring, curfew, drug testing, or counseling. The list usually also includes offense-specific conditions, such as a keep-away order in a domestic battery case and an IID (ignition interlock device) in a DUI case.
Supervision by Pretrial Services
Once the defendant is released, Pretrial Services assigns a Pretrial Services Officer (PSO) to supervise the defendant. In Fulton County, for example, the Pretrial Supervision Unit monitors both felony and misdemeanor clients. Supervision can involve regular check-ins via phone or in-person, unannounced home visits, drug testing, electronic monitoring, and other conditions as ordered by the court.
The PSO reports back to the court on compliance, including whether the defendant is meeting conditions, attending court, or violating terms.
Duration of Pretrial Supervision
Supervision lasts while the case is pending. If a defendant is found not guilty or charges are dropped, supervision ends. If a defendant pleads guilty, PSOs may continue to supervise until sentencing.
If, at any time, the defendant violates conditions, the court may revoke the release, and the bond or bail conditions may be changed.
Pretrial Diversion vs. Pretrial Release
It’s important to distinguish pretrial release (supervision) from pretrial diversion, since both terms are used in Georgia but they’re not exactly the same thing:
- Pretrial Release: This program focuses exclusively on being released from jail while awaiting trial. The focus is on supervision, ensuring court appearance and compliance. There’s no finding of guilt or culpability.
- Pretrial Diversion: This is more like a program offered before trial as an alternative to prosecution. In Georgia, many diversion programs are run by district attorneys’ offices and involve a contract between the defendant and the DA’s office.
Some jurisdictions combine the two. For instance, in our own beloved Cobb County, eligible offenders (often low-risk, first-time, non-violent) may agree to counseling, community service, drug screening, or other obligations, with a promise that successful completion will lead to dismissal of charges.
If available, pretrial release is usually the best jail release mode. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
