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.
Court Process
In adult criminal court, every individual has the right to a speedy trial once charges have been filed against them. Timelines are determined based on custody status.
DA Files Charges
The court process begins at the District Attorney’s Office. This is the office that makes the determination to file criminal charges on an individual after reading the arrest reports. Based on the information available, the District Attorney’s Office will determine the appropriate charges to be filed and will meet the adult court timelines that begins the process.
District Attorney Diversion
Some District Attorney’s Offices have District Attorney diversion programs the individual may complete in order to avoid criminal charges being filed. These diversion programs may consist of community service, counseling, classes, etc. When the individual completes the diversion program, the case will be dismissed and no further action taken. This allows the individual to avoid a criminal record for the charge.
Arraignment
An arraignment is a criminal proceeding where the individual is called before the court, informed of the charges they are facing, advised of their rights, appointed legal counsel (if requested), advised about the consequences of a plea, and asked to enter a plea. This is the first court hearing and must occur within 48 hours for those individuals who were booked into custody and remain detained.
Humphrey Decision
A recent California Supreme court decision, In re Kenneth Humphrey Decision (Humphrey) (Link) set forth the considerations for the superior court when determining if there is cause to detain individuals prior to trial and if not, how bail may be applied. Specifically, the court decision held a court must first consider whether non-financial release options will reasonably protect the safety of the public or the victim, and ensure future court appearances. If the answer is no, then the court shall consider bail but must conduct an individualized assessment and consider ability to pay when setting the amount. Probation Departments may be asked to assist the judge in setting bail by completing a Bail Report. (LINK TO NEW PAGE FOR DETAIL)
Detained
At the arraignment hearing, the judge has options for continuing the person in jail or releasing them into the community. The judge can order the individual to remain detained pending court proceedings depending on the type of offense. This most often happens in serious and/or violent offenses. Once a judge orders detention, the individual is no longer eligible for release on pretrial program.
Straight Release
The judge can alternately release the person from custody with no conditions (straight release or release on their own recognizance). The charges are generally less serious, or the individual may have a history of returning for court appearances.
Pretrial Monitoring Process
For counties with pretrial programs, the judge can order the individual to be released from custody and ordered to report to pretrial monitoring at the probation department with conditions based on their pretrial assessment. Staffing for pretrial monitoring programs may consist of non-sworn staff and/or sworn probation officers, or a combination of the two.
Pretrial monitoring provides a range of alternatives to detention, allowing individuals assessed as lower-risk to remain at home in the community during the court process. The goal of a pretrial monitoring program is to provide a continuum of services based on the individual’s risk to reoffend and likelihood to appear in court. (LINK TO NEW PAGE FOR DETAIL)
As part of their pretrial monitoring process, counties may develop a Pretrial Release Decision Matrix which identifies the level of monitoring and services to be provided for each assessment score .In some instances, a judge may order an individual to pretrial monitoring despite probation’s recommendation for the individual to remain detained. In these circumstances, Probation Departments usually provide their highest level of pretrial monitoring services, unless ordered by the judge to a lower level of monitoring. Situations also occur where an individual would be on a lower level of monitoring based on the assessment score, but the judge orders the individual to a higher level of monitoring.
Once an individual has been placed on pretrial monitoring, an intake with the pretrial monitoring staff occurs. At the intake, the terms and conditions of the pretrial monitoring program are reviewed and signed by the individual. The individual is also provided reporting instructions, which will vary depending on the level of monitoring.
Pretrial monitoring is very different than probation or community supervision as very few conditions are set for the individual, outside of reporting instructions. The goal is to simply make sure the individual attends all their court appearances and does not commit a new offense while going through the court process. Referrals to services or community-based organizations for services are solely to provide assistance to the individual and the judge is not notified if they fail to participate. However, there may be instances where the judge orders the individual to a specific condition of pretrial monitoring. When that occurs, it is then the pretrial monitoring staffs’ responsibility to notify the judge if the individual is participating in the program.
All individuals placed on pretrial monitoring receive court reminders. During the intake process, pretrial monitoring staff ask individuals the preferred method (i.e., call, text, email, letter) to receive court reminders. Staff will then provide court notifications through the preferred method prior to each court hearing. This practice is a best practice and considered a critical pieces of a pretrial monitoring program as research indicates court reminders can increase court appearance rates.
Individuals are ordered to report to pretrial monitoring based on their risk level. The lowest risk individuals are not ordered to report and only receive court reminders of their upcoming court appearances. Other individuals may be ordered to call in or come to the office on a weekly basis. The highest level of pretrial monitoring may include home visits or being placed on global positioning satellite (GPS).
Pretrial monitoring programs are permitted to request drug or alcohol tests, but only when necessary. When the charge is substance abuse related there may be cause to order drug testing or an alcohol monitoring device.
Pre-Plea Report
In some counties, a judge will order the Probation Department to prepare a Pre-Plea Report to encourage an early resolution when an individual is considering a guilty plea. A probation officer will recommend if the individual is a suitable candidate for probation. Often, this report is at the request of the individual’s attorney.
The probation officer will conduct the investigation in a similar manner to a pre-sentence investigation by looking at the facts of the case, the individual’s criminal history, and any mitigating factors in the case.
Deferred Entry of Judgment
Deferred Entry of Judgment, also known as pre-plea diversion, permits a judge to avoid entering a conviction in a criminal case. The individual pleads guilty to the crime they were accused of committing. With a deferred entry of judgement, if the individual successfully completes the terms, the judge will dismiss the criminal charges.
Conviction
A conviction is a formal declaration by the court that an individual is guilty of a criminal offense. A conviction is made by the verdict of a jury or the decision of a judge in a court of law.
Plea Bargain
An arrangement between a prosecutor and individual whereby the individual agrees to plead guilty to a less serious charge in exchange for a more lenient sentence or an agreement to drop other charges.
Guilty Plea
An individual’s admission to the court they committed the offense they are charged with and they agree to waive the right to trial. If the judge accepts the plea, the case proceeds to sentencing.
Jury Trial
A jury trial is where twelve members of the community are assembled to hear the evidence and decide if an individual is guilty of the crime(s) with which they were charged. The ensuing verdict is issued by a jury of the individual’s peers. Unless an individual waives the right to a jury trial, this is a constitutional right.
Pre-Sentence Investigation Report: A Pre-Sentence Investigation Report is ordered by the judge, prepared by the probation officer, and assists the court in determining an appropriate sentence.
The Probation Department is responsible for providing the court information to assist in sentencing. The investigating probation officer will complete a Pre-Sentence Investigation Report. Courts and counties have different practices by which a Pre-Sentence Investigation Report is ordered. Some courts request a report on only felony convictions. Courts may also request reports on misdemeanor cases such as domestic violence or sex offenses. The Probation Department is required to complete the report when it is ordered by the court. (LINK TO NEW PAGE FOR DETAIL)
The Pre-Sentence Investigation Report is designed to give the judge the most current information to assist in sentencing decisions. It is not a reinvestigation of the crime. However, an overview of the crime leading to the conviction is one section of the report. This section is generally written based on information in the police report, interview with the arresting officer, or information that was presented in court during the trial. The report also includes a social history of the individual, including information regarding criminal history, employment, education, family, substance abuse, mental health issues, disabilities, housing, health, and financial status.
A victim impact statement is also part of the report. The victim may agree to an interview with the probation officer or may prepare their own written statement to be submitted to the court.
The probation officer gathers information from police reports, court documents, criminal RAP (records of arrests and prosecutions) sheet, and interviews with the individual being sentenced and the victim. In some cases, the probation officer will also speak with mental health clinicians, substance abuse treatment providers, family members, or other involved persons.
The Pre-Sentence Investigation Report also includes a recommendations section. As part of the recommendations, the probation officer will provide an evaluation of the case, looking at the individual’s needs and make recommendations to the court. If the person has been convicted of a crime and prison is the recommendation, probation will also give information to the California Department of Corrections and Rehabilitation (external link too). If the recommendation is for the person to be on formal probation or mandatory supervision, the recommendations will consist of services needed to assist in the individual’s rehabilitation. Recommendations may also include sanctions such as jail time, drug testing, or electronic monitoring.
The probation officer is generally given about three weeks to complete the report. It is filed with the court prior to the sentencing and given to all attorneys and the individual being sentenced. The victim also has the right to see the report.
The Pre-Sentence Investigation Report also assists the Probation Department in supervising the individual if they are placed on probation supervision or mandatory supervision. The officer will be able to see in the report the types of supervision and services the individual should receive. In many counties, a probation officer is assigned to the courtroom as part of the sentencing process to be able to provide immediate information to the court.
Sentencing Hearing
A Sentencing Hearing is when the judge orders the actual penalty for an individual. Mitigating or aggravating circumstances will work to either increase or decrease the sentence. The judge will use the pre-sentence investigation report to assist in determining the sentence.
Court Probation
A judge may order an individual to court probation, also known as informal probation, conditional sentence, or summary probation, where individuals are not supervised by the Probation Department, but instead report directly to the court. Some Probation Departments determine and set restitution for court probation cases, but once restitution has been determined, the Probation Department does not have any other involvement in the case.
Formal Probation
Formal probation is a type of community supervision that is part of the original sentence ordered by a judge, as an alternative to or in addition to incarceration in the county jail.
1170(h) PC – Straight Sentence
A judge may order an individual to a sentence greater than one year to be served locally at the county jail under Section 1170(h) of the Penal Code for specified non-serious, non-violent, or non-sex offenses. The judge may order the individual to serve a straight sentence (all time served in custody with no period of community supervision).
1170(h)(5)(b) PC – Split Sentence
A judge may order an individual to a sentence greater than one year to be served locally at the county jail under Section 1170(h) of the Penal Code for a specified non-serious, non-violent, or non-sex offenses. The judge may order the individual to serve a split sentence, which includes a period of time in custody followed by a period of community supervision, known as mandatory supervision under Section 1170(h)(5)(b) of the Penal Code.
State Prison
A judge may order an individual to serve their sentence in state prison. In these cases, the individual will return to jail and await transfer to a state prison operated by the California Department of Corrections and Rehabilitation.
1203c PC Report
Per Section 1203c of the Penal Code, if an individual is sentenced to state prison through the Department of Corrections and Rehabilitation (CDCR), the probation officer of the county from which the individual is committed shall complete a report of the circumstances surrounding the offense and the prior record and history of the individual. If the person is convicted of an offense that requires him or her to register as a sex offender pursuant to Section 290 of the Penal Code (and hover definition), the probation officer shall include in the report the results of the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO).
These reports shall accompany the commitment papers. In order to allow the probation officer an opportunity to interview, for the purpose of preparing these reports, the individual shall be held in the county jail for 48 hours, excluding weekends and holidays, subsequent to the imposition of sentence and prior to delivery to CDCR.