Probation in Adult System
California’s Probation Departments play various roles throughout the adult criminal justice system. Probation is often referred to as an “arm of the court”. They are expected to serve as a neutral party in providing judges in adult criminal court with the information necessary to make sentencing decisions. If adults are sentenced to community supervision, the Probation Department is responsible for their supervision and ensuring that they are offered the appropriate rehabilitative services to reduce recidivism. Probation Departments also manage and operate pretrial assessment and monitoring programs throughout the State.
Entry into the Adult Criminal Justice System
Arrest
An individual enters the adult criminal justice system when they are suspected by a law enforcement officer of committing a criminal act. The law enforcement officer has the discretion to determine if the individual should be arrested.
Citation
If the individual is not arrested, they might be given a citation to appear in court. They will be asked to sign the citation as an indication of their agreement to appear at the time of the court hearing. With a citation, the individual is not booked into jail and instead remains in the community.
Booked into Jail
An individual is booked into jail by law enforcement when the offense is serious or violent and the law enforcement officer believes the person poses a risk to community safety. The law enforcement officer will take the person to the city or county jail for the jail booking process. Jail staff will complete the process and make a determination if the individual will stay in custody. Certain charges will require a court hearing before release. Generally, individuals booked on outstanding warrants remain in custody until they appear before the court.
When an individual is booked into jail, there are several options that may occur. These are based on the county’s policies and procedures in addition to the seriousness of the charges for which the person has been arrested. For less serious offenses, jail staff may release the person from jail with a notice to appear in court.
Individuals in custody have the right to bail, a monetary amount set by a judge that a person must pay; or post a bond, which is a promise, usually in the form of money paid by a bail bonds person who the individual has hired and may require collateral to secure. Both bail and bond are often used interchangeably and allow the individual to be released pending court proceedings. Bail is based on a bail schedule approved by the court in each county.
Pretrial Assessment Process
Many Probation Departments in California operate a pretrial program. When an individual is booked into the county jail, the Probation Department conducts a pretrial assessment on eligible offenses in order to provide the judge with a recommendation as to whether the individual is recommended to be detained or released pending court proceedings. (LINK TO NEW PAGE FOR DETAIL) Although these programs vary, pretrial programs are used by courts so that detention is reserved for those individuals that pose a greater risk to the community or are at risk for failure to appear in court. Utilizing a validated pretrial assessment tool will assist in determining whether individuals are recommended for release or to remain detained pending their court proceedings. Pretrial programs are used to assess the likelihood of pretrial failure, provide information to the court for release decisions, sometimes refer individuals to needed services and monitor individuals in the community to mitigate the risk of pretrial failure (failure to appear in court and/or commits a new offense).
Probation Departments use a variety of pretrial assessment instruments, such as the Virginia Pretrial Risk Assessment Instrument (VPRAI), Ohio Risk Assessment Pretrial Assessment Tool (ORAS-PAT), Public Safety Assessment (PSA), and Correctional Offender Management Profiling for Alternative Sanctions (COMPAS).
Some pretrial assessment tools require staff to conduct an interview with the individual and includes dynamic factors in addition to static factors. Other pretrial assessment instruments do not require an interview with the individual and are scored based on static factors that can be obtained from the individual’s current offense and/or prior criminal history.
The goal of any pretrial program is to have the assessment completed prior to the individual’s arraignment, so the judge has all the necessary information prior to making release decisions.
There are circumstances where a pretrial assessment cannot be completed prior to arraignment. Some reasons it may not have been completed are due to the individual being ill, refusal to participate, was combative, or under the influence of drugs and/or alcohol. In these circumstances, the court may remand the individual to the County Jail, order a continuance, and order the Probation Department to go back and complete the pretrial assessment to have the necessary information at the next court appearance.
Due to limitations with staffing and resources, as well as physical limitations within jails and probation departments, jurisdictions must make a variety of decisions when implementing a pretrial program. Best practices recommend local jurisdictions create a pretrial release decision matrix, which categorizes release and detain recommendations based on pretrial assessment scores.
Funding for pretrial staff typically drives the number of individuals that can be assessed through the pretrial assessment instrument. Historically, rarely is there enough funding for every booking into the county jail go through the pretrial assessment process. Therefore, counties prioritize the cases that will be eligible for an interview and/or assessment. For instance, some counties will determine their eligibility criteria is for all new felony bookings into the county jail. Some counties may also perform assessments on certain classes of misdemeanor offenses, such a domestic violence, child abuse, elder abuse, and sex offenses. Ideally, every booking into a county jail would have a pretrial assessment completed; however most counties need to have a starting point and then expand as additional resources become available, processes become streamlined and efficient, and workloads can be evaluated for manageability.
For those pretrial risk assessments that require an interview with the individual, pretrial staff provide a disclaimer explaining the purpose of the interview, how the information will be used, and advise the individual not to disclose information related to their charges. This disclaimer is critical to protect individuals’ rights and adheres to national pretrial best practices. During the assessment interview, pretrial staff ask questions to learn more about an individual’s past criminal history, employment, residential, and financial status.
After completing the pretrial assessment, the individual will receive a risk score. The score correlates with the individual’s likelihood to not appear in court and likelihood to commit a new offense while going through the court process. Based on this score, the pretrial staff may follow a decision matrix in determining if the individual should be released pending court or remain detained pending court.
In some jurisdictions, the Superior Court has created an order granting the probation department release authority based on a certain pretrial risk assessment score. This allows the individual to be released into the community on a Promise to Appear (PTA) and not be detained in the county jail pending arraignment and a decision by the judge on their custody status. Other jurisdictions have an on-call judge who can review the pretrial assessment information and grant release prior to the individual’s arraignment. There are certain penal code sections that require an individual remain detained pending arraignment and are not eligible for release prior to arraignment.
While policy outlines the pretrial recommendations based on assessment score, pretrial services staff can choose to override these recommendations pre-arraignment given supplemental case information. Two common instances where a pretrial release may receive an override from staff is: 1) when an individual lives at the same address as the alleged victim; and, 2) when pretrial staff have additional information about the individual that indicates they may pose a risk to public safety. If staff wish to override the assessment score pre-arraignment, typically designated pretrial supervisory staff must approve the override.
Pretrial staff prepare a Pretrial Report for the court that includes the pretrial assessment score as well as supplemental information from the pretrial interview and criminal history information. In some jurisdictions, this Pretrial Report also includes a recommendation from the pretrial staff as to whether the individual should be released or remained detained. The Pretrial Report is forwarded to the Superior Court, the District Attorney’s Office, and the Public Defender’s Office, or defense attorney, if known, so all relevant parties will have the same information with the detain/release recommendation at the individual’s arraignment. Due to resource limitations, most counties are not able to have pretrial staff in court at the arraignment.