Pretrial Assessment Process

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.