Pretrial Release: Risk Assessment Tools

6/30/2022

Pretrial Risk Assessment Tools

State laws authorize, require, encourage or regulate court use of pretrial risk assessment tools. About two dozen different risk assessment tools are in use across the states.

Some state laws require the adoption of a risk assessment tool and mandate statewide use for most or all defendants. New Jersey, for instance, has a statewide pretrial services program that is tasked with administering pretrial risk assessments and making recommendations to courts. Other states have accomplished similar outcomes through court actions. Utah, for example, doesn’t have a statute addressing pretrial risk assessment, but a tool has been implemented statewide by state courts.

Some laws require courts to utilize risk assessment tools, if they exist, but do not address adoption of a tool on a statewide basis. Tennessee requires courts to consider the results of a validated risk assessment tool if one is available in that jurisdiction.

Another set of laws encourage or authorize the use or consideration of risk assessments but do not mandate their consideration or statewide establishment. Colorado requires courts to consider the results of an empirically developed tool, if practicable. Vermont allows judges to request a risk assessment in certain cases, but defendant participation is voluntary.

Recent state actions have focused on regulating use of the tools. This includes regular validation of the tool; requirements that the tool be free from bias; and that documents, data, records and use be made publicly available. Idaho and New York are examples of states that have not encouraged or required use of a risk assessment tool but have instead provided guidance and requirements that must be met by any jurisdiction that uses one.

Judges retain judicial discretion with risk assessment tools. Generally, the results are one of many factors courts are statutorily required to consider during pretrial decision making. No state requires courts to adhere to the results. Illinois and Pennsylvania specify that assessment results cannot be the only consideration in court decision making.

The box allows you to conduct a full text search or type the state name.

50-State Chart | Risk Assessment Statutes and Court Rules

State

Summary

Alaska

The commissioner shall establish and administer a pretrial services program that provides a pretrial risk assessment for all defendants detained in custody in a correctional facility following arrest and for any defendant for whom the prosecution requests to have a pretrial risk assessment at the next hearing or arraignment. The pretrial services program shall make recommendations to the court concerning pretrial release decisions and provide supervision of defendants released while awaiting trial as ordered by the court.

Alaska Stat. § 33.07.010

 

The commissioner shall

(5) approve a risk assessment instrument that is objective, standardized, and developed based on analysis of empirical data and risk factors relevant to pretrial failure, that evaluates the likelihood of failure to appear in court and the likelihood of rearrest during the pretrial period, and that is validated on the state's pretrial population;

 

 

Alaska Stat. § 33.07.020

 

(a) Pretrial services officers shall, in advance of a first appearance before a judicial officer under AS 12.30, conduct a pretrial risk assessment on the defendant using an instrument approved by the commissioner for the purpose of making a recommendation to the court concerning an appropriate pretrial release decision and conditions of release. In conducting a pretrial risk assessment and making a recommendation to the court, the pretrial services officer shall follow the decision-making process established by regulation under this chapter. The pretrial risk assessment shall be completed and presented to the court in a pretrial release report that contains a risk assessment rating of low, moderate, or high and a recommendation regarding release and release conditions, including a recommendation concerning a defendant's dependency on, abuse of, or addiction to alcohol or controlled substances, to the extent those factors are indicated by the offense or criminal history, before the defendant's first appearance before a judicial officer.

(b) A pretrial services officer shall make a recommendation under (a) of this section for pretrial release to the court based on factors that include the results of a pretrial risk assessment, the offense charged, and the least restrictive condition or conditions that will reasonably ensure the appearance of the person in court and the safety of the victim, other persons, and the community. If the offense or criminal history of a defendant identifies that a dependency on, abuse of, or addiction to alcohol or controlled substances is a factor in the defendant's offense, the pretrial services officer shall include that identified fact in the report to the court and to the attorneys. The recommendation must take into account

(1) the defendant's risk rating;

(2) the appropriateness for release on the defendant's own recognizance or upon the execution of an unsecured appearance bond, unsecured performance bond, or both; and

(3) the appropriateness of nonmonetary release conditions permitted under AS 12.30.011, 12.30.016, 12.30.021, and 12.30.027 and supervision of those conditions by a pretrial services officer for defendants who are recommended for release.

(c) A pretrial services officer shall recommend for release on personal recognizance, upon execution of an unsecured appearance bond, or upon execution of an unsecured performance bond, with nonmonetary conditions as appropriate, if a defendant is charged with

(1) a misdemeanor, unless that misdemeanor is

(A) a crime involving domestic violence, as defined in AS 18.66.990;

(B) a crime against the person under AS 11.41;

(C) an offense under AS 11.56.730 or 11.56.757;

(2) a class C felony, unless that felony is

(A) a crime involving domestic violence, as defined in AS 18.66.990;

(B) a crime against the person under AS 11.41;

(C) an offense under AS 11.56.730;

(3) an offense under AS 28.35.030 or 28.35.032, if the defendant has been assessed as being low or moderate risk on the pretrial risk assessment.

(d) A pretrial services officer shall recommend release on personal recognizance, upon execution of an unsecured appearance bond, or upon execution of an unsecured performance bond, with nonmonetary conditions as appropriate, unless the pretrial services officer finds

(1) by substantial evidence that no nonmonetary conditions of release in combination with release on personal recognizance or upon execution of unsecured bond can reasonably ensure public safety and appearance in court; and

(2) the defendant has been charged with

(A) an offense under AS 28.35.030 or 28.35.032, and the offender has been assessed as high risk under a pretrial risk assessment;

(B) an offense under AS 11.56.730 or 11.56.757, and the offender has been assessed as low to moderate risk under a pretrial risk assessment; or

(C) any other offense, and the defendant has been assessed as being low risk under a pretrial risk assessment.

(f) A pretrial services officer may supervise a defendant released while awaiting trial, imposing the least restrictive level of supervision that will reasonably ensure the appearance of the person in court and the safety of the victim, other persons, and the community, and prioritizing higher levels of supervision for a defendant accused of serious charges or assessed as moderate or high risk under a pretrial risk assessment. The commissioner may, in accordance with AS 36.30, procure and enter into agreements or contracts for the supervision of defendants on electronic monitoring during the pretrial period.

 

 

Alaska Stat. § 33.07.030

 

Arizona

A. Definitions. In this section, the following definitions apply:

“Pretrial risk assessment” means a state-approved validated actuarial assessment that predicts a pretrial defendant's risk of committing a new crime or failing to appear while on pretrial release for the purpose of assisting the court in determining release decisions and release conditions and to assist the pretrial services staff with supervision monitoring requirements.

D. Applicability. This code section applies to all courts or court departments that operate pretrial services including interviewing pretrial defendants, administering pretrial risk assessments, providing recommendations regarding release conditions and/or supervising persons released to pretrial supervision.

 

E. Program Operations.

1. Courts operating pretrial services shall use a pretrial risk assessment tool approved by the Arizona Judicial Council to assist in determining a defendant's likelihood of committing a new crime or failing to appear for court while on pretrial release. The results of the pretrial risk assessment tool shall be provided to the court prior to the initial appearance and, when requested by the court, for use at any hearing in which release decisions are made.

4. Pretrial services staff shall provide information and may make recommendations to assist the court in setting release conditions consistent with A.R.S. § 13-3967(D)-(E) and local policy. Release conditions recommendations shall be based on results from a risk assessment, and may also include but are not limited to:

a. Use of electronic monitoring;

b. Imposing curfews or house arrest;

c. Drug and alcohol monitoring, testing, evaluation or treatment; and

d. Assessing needs of seriously mentally ill defendants.

G. Training Requirements.

1. Courts using a risk assessment instrument shall ensure that pretrial services staff responsible for administration of a pretrial risk assessment instrument complete approved training.

 

Arizona Code of Judicial Admin. §5-201

California

(a) It is the intent of the Legislature in enacting this section to understand and reduce biases based on gender, income level, race, or ethnicity in pretrial release decisionmaking.

 

(b) For the purposes of this section, the following terms have the following meanings:

(1) “Pretrial risk assessment tool” means an instrument used to determine the risks associated with individuals in the pretrial context.

(2) “Pretrial services agency” means a local public agency that elects to perform pretrial risk assessments on individuals and provides the assessment information to a court.

(3) “Release conditions framework” means the guidelines used by the pretrial services agency and the court to categorize varying degrees of risk for purposes of recommending whether to release or detain a person, whether to impose pretrial release conditions on a person, and guidance regarding those conditions.

(4) “Validate” means using scientifically accepted methods to measure both of the following:

(A) The accuracy and reliability of the risk assessment tool in assessing (i) the risk that an assessed person will fail to appear in court as required and (ii) the risk to public safety due to the commission of a new criminal offense if the person is released before the adjudication of the current criminal offense for which they have been charged.

(B) Any disparate effect or bias in the risk assessment tool based on gender, race, or ethnicity.

 

(c)(1) Any pretrial risk assessment tool used by a pretrial services agency shall be validated by July 1, 2021, and on a regular basis thereafter, but no less frequently than once every three years. A pretrial services agency may coordinate with the Judicial Council to validate a pretrial risk assessment tool.

(2) A pretrial risk assessment tool shall be validated using the most recent data collected by the pretrial services agency within its jurisdiction, or, if that data is unavailable, using the most recent data collected by a pretrial services agency in a similar jurisdiction within California.

 

(d)(1) In order to increase transparency, a pretrial services agency shall, with regard to a pretrial risk assessment tool that it utilizes, make the following information publicly available:

(A) Line items, scoring, and weighting, as well as details on how each line item is scored, for each pretrial risk assessment tool that the agency uses.

(B) Validation studies for each pretrial risk assessment tool that the agency uses.

(2) A pretrial services agency shall, when selecting which pretrial risk assessment tool to utilize, ensure that the agency would be able to comply with paragraph (1) if that tool was selected.

 

(e) The Judicial Council shall maintain a list of pretrial services agencies that have satisfied the validation requirement described in subdivision (c) and complied with the transparency requirements described in subdivision (d).

 

(f) Beginning on or before June 30, 2021, and on or before June 30 of each year thereafter, the Judicial Council shall publish on its internet website a report with data related to outcomes and potential biases in pretrial release. The report shall, at a minimum, include:

(1) The following information on each county pretrial release program:

(A) The name of the pretrial risk assessment tool that is used to inform release decisions by the court.

(B) The release conditions framework used in the county.

(C) Whether a pretrial services agency is conducting interviews as part of the risk assessment.

(2) The following information by superior court in large and medium courts and otherwise aggregated by superior court size:

(A) Rates of release granted prearraignment and rates of release granted pretrial, aggregated by gender, race or ethnicity, ZIP Code of residency and offense type.

(B) The percent of released individuals who make their required court appearances, aggregated by offense type and whether they were released on bail or pursuant to a risk assessment. For those released pursuant to a risk assessment, this information shall be aggregated by risk level.

(C) The percent of released individuals who are not charged with a new offense during the pretrial stage, aggregated by offense type and whether they were released on bail or pursuant to a risk assessment. For those released pursuant to a risk assessment, this information shall be aggregated by risk level.

(D) The number of assessed individuals by age, ZIP Code of residency, gender, and race or ethnicity.

(E) The number of assessed individuals by risk level, ZIP Code of residency, booking charge level, and release decision.

(F) The number and percentage of assessed individuals who receive pretrial supervision by level of supervision.

(G) The number and percentage of assessed individuals, by supervision level, who fail to appear in court as required, are arrested for a new offense during the pretrial period, or have pretrial release revoked.

(3) The following information on each risk assessment tool:

(A) The percent of released individuals who attend all of their required court appearances and are not charged with a new offense during the pretrial stage, aggregated by risk level.

(B) Risk levels aggregated by race or ethnicity, gender, offense type, ZIP Code of residency, and release or detention decision.

(C) The predictive accuracy of the tool by gender, race or ethnicity, and offense type.

(D) The proportion of cases in which the release or detention recommendation derived from the risk assessment is different than the release or detention decision imposed by the judicial officer.

(4) If feasible, the Judicial Council shall provide information on any disparate effect in the tools based on income level.

 

(g)(1) Pretrial services agencies and courts shall provide the Judicial Council the requisite data, as determined by the Judicial Council, to meet the requirements of this section.

(2) The Department of Justice shall work with the Judicial Council to provide the data necessary to fulfill the requirements of this section.

(3) The Judicial Council shall not share any individual-level data with any outside entity unless it has entered into a contract for research purposes with the entity and privacy protections are established to anonymize the data.

 

(h) The requirements of subdivisions (f) and (g) shall apply to pretrial services agencies that perform risk assessments pursuant to a contractual agreement with the courts, including all of the following:

(1) Agencies funded pursuant to the Budget Act of 2019 as pretrial pilot projects.

(2) Agencies otherwise funded by the state to perform risk assessments.

(3) Other agencies that perform risk assessments as long as sufficient funding is provided to the Judicial Council, the superior courts, and pretrial services agencies to ensure their ability to meet the data reporting requirements and standards set by the Judicial Council.

 

(i)(1) By January 1, 2023, the Judicial Council shall provide a report to the courts and the Legislature containing recommendations to mitigate bias and disparate effect in pretrial decisionmaking.

(2) A report to be submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.

 

Cal. Penal Code § 1320.35

Colorado

(b) In determining the type of bond and conditions of release, if practicable and available in the jurisdiction, the court shall use an empirically developed risk assessment instrument designed to improve pretrial release decisions by providing to the court information that classifies a person in custody based upon predicted level of risk of pretrial failure.

 

Colo. Rev. Stat. § 16-4-103

 

(4) Any pretrial services program approved pursuant to this section must meet the following criteria:

(a) The program must establish a procedure for the screening of persons who are detained due to an arrest for the alleged commission of a crime so that such information may be provided to the judge who is setting the bond and conditions of release. The program must provide information that provides the court with the ability to make an appropriate initial bond decision that is based upon facts relating to the person's risk of failure to appear for court and risk of danger to the community.

(b) The program must make all reasonable attempts to provide the court with such information delineated in this section as is appropriate to each individual person seeking release from custody;

(c) The program, in conjunction with the community advisory board, must make all reasonable efforts to implement an empirically developed pretrial risk assessment tool, to be used by the program, the court, and the parties to the case solely for the purpose of assessing pretrial risk, and a structured decision-making design based upon the person's charge and the risk assessment score;

(6) Commencing July 1, 2012, each pretrial services program established pursuant to this section shall provide an annual report to the judicial department no later than November 1 of each year, regardless of whether the program existed prior to May 31, 1991. Notwithstanding section 24-1-136(11)(a)(I), the judicial department shall present an annual combined report to the house and senate judiciary committees of the house of representatives and the senate, or any successor committees, of the general assembly. The report to the judicial department must include, but is not limited to, the following information:

 (a) The total number of pretrial assessments performed by the program and submitted to the court;

(b) The total number of closed cases by the program in which the person was released from custody and supervised by the program;

(c) The total number of closed cases in which the person was released from custody, was supervised by the program, and, while under supervision, appeared for all scheduled court appearances on the case;

(d) The total number of closed cases in which the person was released from custody, was supervised by the program, and was not charged with a new criminal offense that was alleged to have occurred while under supervision and that carried the possibility of a sentence to jail or imprisonment;

(e) The total number of closed cases in which the person was released from custody and was supervised by the program, and the person's bond was not revoked by the court due to a violation of any other terms and conditions of supervision; and

(f) Any additional information the judicial department may request.

 

Colo. Rev. Stat. § 16-4-106

 

(7) Prior to the initial hearing, any pretrial services agency operating in that county, or any other agency that reports to the court, that has conducted a pretrial release assessment or gathered information for the court's consideration at the initial hearing shall provide to the prosecution and the person's attorney all information provided to the court regarding the person in custody, which shall include, if provided, the arrest warrant, the probable cause statement, and the person's criminal history.

 

Colo. Rev. Stat. § 16-4-104

Connecticut

Requires the court support services division to establish a set of weighted criteria based on the premise that the least restrictive conditions of release necessary to ensure appearance in court and sufficient to reasonably ensure the safety of another person will not be endangered is the pretrial release alternative of choice. This has been used by the state to inform release decisions since the 1980s. The state adopted their first actuarial risk assessment in 2003.

 

See § 54-63b for statutory language on weighted release criteria and this report for information on the statewide risk assessment tool.

Delaware

(e)(1) The determination of whether the defendant shall be released under paragraph (a)(1), (a)(2), (a)(3), or (a)(4) of this section and the conditions (other than the mandatory conditions in paragraph (b) of this section above) of the release shall be in the discretion of the court subject to this chapter. When making a release determination, or imposing conditions set forth in § 2108 of this title, the court shall use an empirically developed risk assessment instrument, if available, designed to improve pretrial release decisions by assessing defendant's likelihood of pretrial success. In circumstances involving suspected domestic or intimate partner violence, the judicial officer shall also consider the results, if available, of an instrument designed to assess the likelihood or predicted severity of future violence against the alleged victim. Any such risk assessment tools are not binding on the court. They are factors to be considered in the totality of the circumstances in determining the conditions of release imposed upon the defendant. The judicial officer may consider any other facts and circumstances regarding a defendant's likelihood of pretrial success and the protection of the victim, witnesses, and any other person.

 

Del. Code tit. 11, § 2104

Hawaii

(a) There shall be within the department of public safety, an intake service center for adults in each of the counties to screen, evaluate, and classify the admission of persons to community correctional centers. Each center shall be directed and managed by a manager and shall be staffed by a team of psychiatrists, social workers, technicians, and other personnel as may be necessary. The director of public safety may appoint full-time or part-time professional and clerical staff or contract for professional services.

(b) The centers shall:

(3) Conduct internal pretrial risk assessments on adult offenders within three working days of admission to a community correctional center; provided that this paragraph shall not apply to persons subject to county or state detainers or holds, persons detained without bail, persons detained for probation violation, persons facing revocation of bail or supervised release, and persons who have had a pretrial risk assessment completed prior to admission to a community correctional center. For purposes of this paragraph, “pretrial risk assessment” means an objective, research-based, validated assessment tool that measures an offender's risk of flight, risk of criminal conduct, and risk of violence or harm to any person or the general public while on pretrial release pending adjudication. The pretrial risk assessment tool and procedures associated with its administration shall be periodically reviewed and subject to further validation at least every five years to evaluate the effectiveness of the tool and the procedures associated with its administration. The findings of periodic reviews shall be publicly reported;

(9) Provide pretrial bail reports to the courts on adult offenders, within three working days of admission of the offender to a community correctional center, that are ordered by the court or consented to by the offender. A complete copy of the executed pretrial risk assessment delineating the scored items, the total score, any administrative scoring overrides applied, and written explanations for administrative scoring overrides, shall be included in the pretrial bail report. The pretrial bail reports shall be confidential and shall not be deemed to be public records. A copy of a pretrial bail report shall be provided only:

(A) To the defendant or defendant's counsel;

(B) To the prosecuting attorney;

(C) To the department of public safety;

(D) To any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order;

(E) Upon request, to the adult client services branch; and

(F) In accordance with applicable laws, persons, or entities doing research. The research entity must be approved and contracted by the department of public safety to protect the confidentiality of the information, insofar as the information is not a public record.

 

Haw. Rev. Stat. § 353-10

Idaho

(1) All pretrial risk assessment tools shall be transparent, and:

(a) All documents, data, records, and information used by the builder to build or validate the pretrial risk assessment tool and ongoing documents, data, records, and written policies outlining the usage and validation of the pretrial risk assessment tool shall be open to public inspection, auditing, and testing;

(b) A party to a criminal case wherein a court has considered, or an expert witness has relied upon, a pretrial risk assessment tool shall be entitled to review all calculations and data used to calculate the defendant's own risk score; and

(c) No builder or user of a pretrial risk assessment tool may assert trade secret or other intellectual property protections in order to quash discovery of the materials described in paragraph (a) of this subsection in a criminal or civil case.

(2) For purposes of this section, “pretrial risk assessment tool” means a pretrial process that creates or scores particular factors in order to estimate a person's level of risk to fail to appear in court, risk to commit a new crime, or risk posed to the community in order to make recommendations as to bail or conditions of release based on such risk, whether made on an individualized basis or based on a grid or schedule.

 

Idaho Code § 19-1910

Illinois
Effective in Jan. 2023*

(d) The Court may use a regularly validated risk assessment tool to aid its determination of appropriate conditions of release as provided for in Section 110-6.4. Risk assessment tools may not be used as the sole basis to deny pretrial release. If a risk assessment tool is used, the defendant's counsel shall be provided with the information and scoring system of the risk assessment tool used to arrive at the determination. The defendant retains the right to challenge the validity of a risk assessment tool used by the court and to present evidence relevant to the defendant's challenge.

 

725 ILCS 5/110-5*

Indiana

Sec. 0.5. (a) The following definitions apply throughout this chapter:

(1) “Evidence based risk assessment” means an assessment:

(A) that identifies factors relevant to determine whether an arrestee is likely to:

(i) commit a new criminal offense; or

(ii) fail to appear;

 

if released on bail or pretrial supervision; and

(B) that is based on empirical data derived through validated criminal justice scientific research.

(2) “Indiana pretrial risk assessment system” means the statewide evidence based risk assessment system described in subsection (b).

 

(b) Before January 1, 2020, the supreme court should adopt rules to establish a statewide evidence based risk assessment system to assist courts in selecting the appropriate level of bail or other pretrial supervision for arrestees eligible for pretrial release. The system must consist of:

(1) an evidence based risk assessment tool; and

(2) other rules as adopted by the supreme court.

(c) The Indiana pretrial risk assessment system shall be designed to assist the courts in assessing an arrestee's likelihood of:

(1) committing a new criminal offense; or

(2) failing to appear.

 

Ind. Code § 35-33-8-0.5

Kentucky

(1) For purposes of this section, “verified and eligible defendant” means a defendant who pretrial services is able to interview and assess, and whose identity pretrial services is able to confirm through investigation.

 

(2) When a court considers pretrial release and bail for an arrested defendant, the court shall consider whether the defendant constitutes a flight risk, is unlikely to appear for trial, or is likely to be a danger to the public if released. In making this determination, the court shall consider the pretrial risk assessment for a verified and eligible defendant along with the factors set forth in KRS 431.525.

 

(3) If a verified and eligible defendant poses low risk of flight, is likely to appear for trial, and is not likely to be a danger to others, the court shall order the defendant released on unsecured bond or on the defendant's own recognizance subject to such other conditions as the court may order.

 

(4) If a verified and eligible defendant poses a moderate risk of flight, has a moderate risk of not appearing for trial, or poses a moderate risk of danger to others, the court shall release the defendant under the same conditions as in subsection (3) of this section but shall consider ordering the defendant to participate in global positioning system monitoring, controlled substance testing, increased supervision, or such other conditions as the court may order.

 

Ky. Stat. §431.066

Maryland

 

(5) Pretrial Risk Scoring Instrument. “Pretrial risk scoring instrument” means a tool, a metric, an algorithm, or software that is used to assist in determining the eligibility of a defendant for pretrial release in a pretrial proceeding based on the defendant's flight risk and threat to community safety.

(f) Consideration of Factors.

(1) Recommendation of Pretrial Release Services Program. In determining whether a defendant should be released and the conditions of release, the judicial officer shall give consideration to the recommendation of any pretrial release services program that has made a risk assessment of the defendant in accordance with a validated pretrial risk scoring instrument and is willing to provide an acceptable level of supervision over the defendant during the period of release if so directed by the judicial officer.

 

Md. Rule 4-216.1

 

“Pretrial risk scoring instrument” defined

(a) In this section, “pretrial risk scoring instrument” means a tool, a metric, an algorithm, or software that is used to assist in determining the eligibility of a defendant for pretrial release in a pretrial proceeding based on the defendant's flight risk and threat to community safety.

In general

 

(b) A jurisdiction that uses a pretrial risk scoring instrument to determine the eligibility of a defendant for pretrial release shall have an independent validation study of the pretrial risk scoring instrument conducted at least once every 5 years.

 

Md. Code, Crim. Proc. § 5-103

Minnesota

 

The local corrections department or its designee shall conduct a pretrial bail evaluation of each defendant arrested and detained for committing a crime of violence as defined in section 624.712, subdivision 5, a violation of section 609.3458, a gross misdemeanor violation of section 609.224 or 609.2242, or a nonfelony violation of section 518B.01, 609.2231, 609.3451, 609.748, or 609.749. In cases where the defendant requests appointed counsel, the evaluation shall include completion of the financial statement required by section 611.17. The local corrections department shall be reimbursed $25 by the Department of Corrections for each evaluation performed. The Judicial Council, in consultation with the Department of Corrections, shall approve the pretrial evaluation form to be used in each county.

 

§ 629.74 See also Minnesota Judicial Branch Policy 524

Missouri

 

(e) In determining whether to detain the defendant pursuant to subsection (d) or release the defendant with a condition or combination of conditions of release, if any, pursuant to subsection (c), the court shall base its determination on the individual circumstances of the defendant and the case. Based on available information, the court shall take into account: the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant's family ties, employment, financial resources, including ability to pay, character, and mental condition; the length of the defendant's residence in the community; the defendant's record of convictions; the defendant's record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings; whether the defendant was on probation, parole or release pending trial or appeal at the time the offense for which the court is considering detention or release was committed; and any validated evidentiary-based risk assessment tool approved by the Supreme Court of Missouri.

 

MO Supreme Court Rule 33.01 See 37.15 for risk assessment in traffic and ordinance cases.

Montana

(1) Within the limits of available funds, the office of court administrator shall develop and administer a pretrial program for misdemeanor or felony defendants that includes the use of a validated pretrial risk assessment tool.

 

(2) The office of court administrator may use program funds to:

(a) develop, implement, and administer the pretrial program; and

(b) make allocations to counties or organizations contracting with a county to provide pretrial services.

 

(3) Allocated funds may be used for pretrial services staff, to obtain assessment instruments, and to provide supervision of pretrial misdemeanor or felony defendants.

 

(4) In administering the pretrial program, the office shall:

(a) identify priorities for funding services and activities and the criteria for the allocation of program funds, including that courts accepting funds shall use a validated risk assessment tool to assign release conditions and determine placement options;

(b) monitor the expenditure of funds by counties and organizations receiving funds under this section;

(c) evaluate the effectiveness of services and activities under this section;

(d) establish an advisory council that includes local and district court judges and other stakeholders to provide guidance to the office; and

(e) develop policies and procedures necessary to implement this section, subject to approval of the supreme court.

 

(5)(a) Funds available under subsection (1) consist of state appropriations and federal funds received by the office for the purposes of administering the pretrial program or any funds received pursuant to subsection (5)(b).

(b) The office may accept gifts, grants, and donations from other public or private sources, which must be used within the scope of this section.

 

Mont. Code § 3-1-708

Nevada

Effective in 2019, the state Supreme Court adopted a statewide risk assessment.

 

2019 ADKT 0539 order

New Jersey

a. An eligible defendant, following the issuance of a complaint-warrant pursuant to the conditions set forth under subsection c. of this section, shall be temporarily detained to allow the Pretrial Services Program to prepare a risk assessment with recommendations on conditions of release pursuant to section 11 of P.L.2014, c. 31 (C.2A:162-25) and for the court to issue a pretrial release decision.

 

b. (1) Except as otherwise provided under sections 4 and 5 of P.L.2014, c. 31 (C.2A:162-18 and C.2A:162-19), the court, pursuant to section 3 of P.L.2014, c. 31 (C.2A:162-17), shall make a pretrial release decision for the eligible defendant without unnecessary delay, but in no case later than 48 hours after the eligible defendant's commitment to jail. The court shall consider the Pretrial Services Program's risk assessment and recommendations on conditions of release before making any pretrial release decision for the eligible defendant.

(2) After considering all the circumstances, the Pretrial Services Program's risk assessment and recommendations on conditions of release, and any information that may be provided by a prosecutor or the eligible defendant, the court shall order that the eligible defendant be:

(a) released on the eligible defendant's own recognizance or on execution of an unsecured appearance bond; or

 

N.J. Stat. § 2A:162-16

 

In determining in a pretrial detention hearing whether no amount of monetary bail, non-monetary conditions or combination of monetary bail and conditions would reasonably assure the eligible defendant's appearance in court when required, the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, the court may take into account information concerning:

f. The release recommendation of the pretrial services program obtained using a risk assessment instrument under section 11 of P.L.2014, c. 31 (C.2A:162-25).

 

N.J. Stat. § 2A:162-20

 

a. The Administrative Director of the Courts shall establish and maintain a Statewide Pretrial Services Program which shall provide pretrial services to effectuate the purposes of sections 1 through 11 of P.L.2014, c. 31 (C.2A:162-15 et seq.).

 

b. The Pretrial Services Program shall, after an eligible defendant is temporarily detained pursuant to subsection a. of section 2 of P.L.2014, c. 31 (C.2A:162-16) following the issuance of a complaint-warrant, conduct a risk assessment on that eligible defendant for the purpose of making recommendations to the court concerning an appropriate pretrial release decision, including whether the eligible defendant shall be: released on the eligible defendant's own personal recognizance or on execution of an unsecured appearance bond; released on a non-monetary condition or conditions as set forth under subsection b. of section 3 of P.L.2014, c. 31 (C.2A:162-17); released on monetary bail, other than an unsecured appearance bond; released on a combination of monetary bail and non-monetary conditions set forth under section 3 of P.L.2014, c. 31 (C.2A:162-17); or any other conditions necessary to effectuate the purposes of sections 1 through 11 of P.L.2014, c. 31 (C.2A:162-15 et seq.). The risk assessment shall be completed and presented to the court so that the court can, without unnecessary delay, but in no case later than 48 hours after the eligible defendant's commitment to jail, make a pretrial release decision on the eligible defendant pursuant to section 3 of P.L.2014, c. 31 (C.2A:162-17).

 

c. The pretrial risk assessment shall be conducted using a risk assessment instrument approved by the Administrative Director of the Courts that meets the requirements of this subsection.

(1)(a) The approved risk assessment instrument shall be objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release. The risk assessment instrument shall not be required to include factors specifically pertaining to the risk for obstructing or attempting to obstruct the criminal justice process.

(b) The approved risk assessment instrument shall not consider a charge, including any charge of delinquency, conviction, or adjudication of delinquency, or civil penalty if the act was an unlawful act and not a crime or offense, based on a violation of any of the following, as risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release: manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5, or a lesser amount of marijuana or hashish in violation of paragraph (12) of subsection b. of that section; or a violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c. 101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c. 327 (C.2C:35-7.1) for distributing, dispensing, or possessing with intent to distribute or dispense, on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building; or obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10; or a violation involving marijuana or hashish as described herein and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish.

(2) The approved risk assessment instrument shall gather demographic information about the eligible defendant including, but not limited to, race, ethnicity, gender, financial resources, and socio-economic status. Recommendations for pretrial release shall not be discriminatory based on race, ethnicity, gender, or socio-economic status.

 

d. In addition to the pretrial risk assessments made pursuant to this section, the Pretrial Services Program shall monitor appropriate eligible defendants released on conditions as ordered by the court.

 

N.J. Stat. § 2A: 162-25

New Mexico

C. Factors to be considered in determining conditions of release. In determining the least restrictive conditions of release that will reasonably ensure the appearance of the defendant as required and the safety of any other person and the community, the court shall consider any available results of a pretrial risk assessment instrument approved by the Supreme Court for use in the jurisdiction, if any, and the financial resources of the defendant.

 

NMRA, Rule 5-401

New York 

3. (a) Any questionnaire, instrument or tool used with a principal in the process of considering or determining the principal's possible release on recognizance, release under non-monetary conditions or on bail, or used with a principal in the process of considering or determining a condition or conditions of release or monitoring by a pretrial services agency, shall be promptly made available to the principal and the principal's counsel upon written request. Any such blank form questionnaire, instrument or tool regularly used in the county for such purpose or a related purpose shall be made available to any person promptly upon request.

 

(b) Any such questionnaire, instrument or tool used to inform determinations on release or conditions of release shall be:

(i) designed and implemented in a way that ensures the results are free from discrimination on the basis of race, national origin, sex, or any other protected class; and

(ii) empirically validated and regularly revalidated, with such validation and revalidation studies and all underlying data, except personal identifying information for any defendant, publicly available upon request.

 

N.Y. Crim. Proc. Law § 510.45

Pennsylvania

§2711. Probable cause in domestic violence arrests

(c) Bail.--

(1) A defendant arrested pursuant to this section shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay. In no case shall the arresting officer release the defendant from custody rather than taking the defendant before the issuing authority.

(2) In determining whether to admit the defendant to bail, the issuing authority shall consider whether the defendant poses a threat of danger to the victim. In making a determination whether the defendant poses a threat of danger to the victim in cases under this section, the issuing authority may use a pretrial risk assessment tool as set forth in subsection (c.1). If the issuing authority makes such a determination, it shall require as a condition of bail that the defendant shall refrain from entering the residence or household of the victim and the victim's place of employment and shall refrain from committing any further criminal conduct against the victim and shall so notify the defendant thereof at the time the defendant is admitted to bail. Such condition shall expire at the time of the preliminary hearing or upon the entry or the denial of the protection of abuse order by the court, whichever occurs first. A violation of this condition may be punishable by the revocation of any form of pretrial release or the forfeiture of bail and the issuance of a bench warrant for the defendant's arrest or remanding him to custody or a modification of the terms of the bail. The defendant shall be provided a hearing on this matter.

 

(c.1) Pretrial risk assessment tool.--The president judge of a court of common pleas may adopt a pretrial risk assessment tool for use by the court of common pleas or by the Philadelphia Municipal Court, the Pittsburgh Magistrates Court or magisterial district judges when acting as the issuing authority in cases under this section. The issuing authority may use the pretrial risk assessment tool to aid in determining whether the defendant poses a threat of danger to the victim. However, the pretrial risk assessment tool may not be the only means of determining whether to admit the defendant to bail. Nothing in this subsection shall be construed to conflict with the issuing authority's ability to determine whether to admit the defendant to bail under the Pennsylvania Rules of Criminal Procedure.

 

(c.2) Pennsylvania Commission on Sentencing.--The following apply to the Pennsylvania Commission on Sentencing:

(1) The commission shall develop a model pretrial risk assessment tool which may be used by the issuing authority in cases under this section, as set forth in subsection (c.1).

(2) Subject to any inconsistent rule of court, in order to ensure that the model pretrial risk assessment tool or other pretrial risk assessment tool adopted under this section is effective, accurate and free from racial or economic bias, prior to the adoption of the tool, the commission shall publish a report of validation using information from cases from the judicial district where the tool is to be utilized. The report shall be updated every two years.

 

18 Pa. Stat. and Cons. Stat. § 2711

Rhode Island

(a) Creation of unit; definitions. There is created within the district court a pretrial services unit to provide pre-arraignment and post-arraignment services to defendants.

 

(1) “Pre-arraignment report” may include:

(i) The results of a risk screen;

(ii) For a defendant who scores as high risk on the risk screen, additional validated screens for mental health and substance use needs, to determine whether more in-depth assessment is needed post-arraignment; and

(iii) For a defendant charged with a domestic violence offense under § 12-29-2, and who has prior domestic violence offenses or other indications of risk, a lethality or dangerousness assessment.

 

(2) “Post-arraignment service” includes completion of the pre-arraignment report, a post-arraignment report, if necessary, and monitoring of defendants released on conditions that are informed by the pre-arraignment report, including substance abuse treatment referrals and testing; referrals to the home confinement program; employment referrals; and any other referrals that may be necessary to carry out the intent of this section.

 

(3) “Risk screen” means a validated, empirically based pretrial risk tool composed of a brief set of questions that may be answered without interviewing the defendant and are designed to predict failure to appear and risk to re-offend.

(c) Delivery of report. The pre-arraignment report and any post-arraignment screening shall be immediately delivered to the judicial officer before whom the accused shall be brought for the purpose of determining the form and conditions of recognizance.

(e) Confidentiality of communications. The accused shall be advised orally and in a written waiver form for the signature of the accused that he or she has the right to remain silent and may voluntarily decline to respond to any or all questions that may be put by representatives of the pretrial services unit. Communications between the accused and representatives of the pretrial services unit shall be considered confidential pursuant to § 12-13-24.

 

12 R.I. Gen. Laws § 12-13-24.1

Tennessee

(b) In determining under subsection (a) whether or not a defendant shall be released, and if so, the least restrictive conditions of release that will reasonably ensure the appearance of the defendant as required and the safety of the community, the magistrate must consider any available results of a validated pretrial risk assessment conducted regarding the defendant for use in the jurisdiction and the defendant's financial resources. In making this determination, the magistrate may also consider:

(1) The defendant's length of residence in the community;…

 

Tenn. Code § 40-11-115

Utah

Courts are piloting the “Public Safety Assessment.”

See the state courts webpage for decision-making frameworks for each county.

Vermont

(a)(1) The objective of a pretrial needs screening is to obtain a preliminary indication of whether a person has a substantial substance abuse or mental health issue that would warrant a subsequent court order for a more detailed clinical assessment.

(2) Participation in a needs screening pursuant to this section does not create any entitlement for the screened person.

 

(b)(1) Except as provided in subdivision (2) of this subsection, a judge may request that a pretrial services coordinator perform a risk assessment that assesses risk of flight for a person who is arrested, lodged, and unable to post bail within 24 hours of lodging.

(2) A person charged with an offense for which registration as a sex offender is required pursuant to chapter 167, subchapter 3 of this title or an offense punishable by a term of life imprisonment shall not be eligible under this section.

(3) Participation in risk assessment or needs screening shall be voluntary and a person's refusal to participate shall not result in any criminal legal liability to the person.

(4) In the event a screening cannot be obtained prior to arraignment, the needs screening shall be conducted as soon as practicable.

(5) A person who qualifies pursuant to subdivision (1) of this subsection and who has an additional pending charge or a violation of probation shall not be excluded from being offered a needs screening unless the other charge is a listed crime.

(6) Any person charged with a criminal offense, a person who is the subject of a youthful offender petition pursuant to 33 V.S.A. § 5280, or a person 18 years of age or older who is the subject of a delinquency petition pursuant to 33 V.S.A. § 5201, except those persons identified in subdivision (2) of this subsection, may choose to engage with a pretrial services coordinator.

 

(c) The results of the risk assessment and needs screening shall be provided to the person and his or her attorney, the prosecutor, and the court. Pretrial services coordinators may share information only within the limitations of subsection (e) of this section.

(e)(1) Information obtained from the person during the risk assessment or needs screening shall be exempt from public inspection and copying under the Public Records Act and, except as provided in subdivision (2) of this subsection, only may be used for determining bail, conditions of release, and appropriate programming for the person in the pending case. The information a pretrial services coordinator may report is limited to whether a risk assessment indicates risk of nonappearance, whether further substance use assessment or treatment is indicated, whether mental health assessment or treatment is indicated, whether a person participated in a clinical assessment, and whether further engagement with pretrial services is recommended, unless the person provides written permission to release additional information. Information related to the present offense directly or indirectly derived from the risk assessment, needs screening, or other conversation with the pretrial services coordinator shall not be used against the person in the person's criminal or juvenile case for any purpose, including impeachment or cross-examination. However, the fact of participation or nonparticipation in risk assessment or needs screening may be used in subsequent proceedings. The immunity provisions of this subsection apply only to the use and derivative use of information gained as a proximate result of the risk assessment, needs screening, or other conversation with the pretrial services coordinator.

(2) The person shall retain all of his or her due process rights throughout the risk assessment and needs screening process and may release his or her records at his or her discretion.

(3) All records of information obtained during risk assessment or needs screening shall be stored in a manner making them accessible only to the Director of Pretrial Services and pretrial service coordinators for a period of three years, after which the records shall be maintained as required by sections 117 and 218 of this title and any other State law. The Director of Pretrial Services shall be responsible for the destruction of records when ordered by the court.

 

(f) The Attorney General's Office shall:

(1) contract for or otherwise provide the pretrial services described in this section, including performance of risk assessments, needs screenings, and pretrial monitoring services, and

(2) develop pretrial services outcomes following the designated State of Vermont performance accountability framework and, in consultation with the Department of State's Attorneys and Sheriffs, the Office of the Defender General, the Center for Crime Victim Services, and the Judiciary, report annually on or before December 1 to the General Assembly on services provided and outcome indicators.

 

Vt. Stat. tit. 13, § 7554c

Virginia

The Department of Criminal Justice Services shall prescribe standards for the development, implementation, operation and evaluation of services authorized by this article. The Department of Criminal Justice Services shall develop risk assessment and other instruments to be used by pretrial services agencies in assisting judicial officers in discharging their duties pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. Any city, county or combination thereof which establishes pretrial services pursuant to this article shall submit a biennial plan to the Department of Criminal Justice Services for review and approval.

 

Va. Code § 19.2-152.3

West Virginia

(a) Within three calendar days of the arrest and placement of any person in a jail, the division shall conduct a pretrial risk assessment using a standardized risk assessment instrument approved and adopted by the Supreme Court of Appeals of West Virginia. The results of all standardized risk and needs assessments are confidential and shall only be provided to the court, court personnel, the prosecuting attorney, defense counsel, and the person who is the subject of the pretrial risk assessment. Upon completion of the assessment, the Division of Corrections and Rehabilitation shall provide it to the magistrate and circuit clerks for delivery to the appropriate circuit judge or magistrate.

(b) The pretrial risk assessment and all oral or written statements made by an individual during risk assessment shall be inadmissible evidence at any criminal or civil trial.

 

W. Va. Code § 15A-5-7

Additional Resources