In addition to assigning defendants to specific risk categories, the pretrial risk assessment should be used to identify any condition or combination of conditions designed to address the identified risks. A range of options should be available, such as release on recognizance, restrictive non-financial conditions, and as the last resort, financial conditions (financial conditions are only recommended to assure appearance). Conditions should be recommended on a graduated basis, from least to most restrictive. Where applicable (i.e., in states with preventive detention legislation), recommendations should indicate if preventive detention is appropriate.
Managing risk requires balancing the constitutional rights of the defendant with the risk the defendant poses using effective supervision and strategic interventions. Judicial officers are tasked with identifying the least restrictive terms and conditions of release that will (1) not result in unnecessary detention and (2) reasonably assure a defendant will appear for court and not present a danger to the community during the pretrial stage, unless the court determines that no conditions or combination of conditions will reasonably assure the appearance of the person in court and the safety of any other person and the community. Conditions may include contact (in-person, telephone, etc.), court date reminders, and criminal history checks. They may also require some combination of the following conditions: no new arrests or violations, no driving, no alcohol or illegal drug consumption, no weapons, no contact with the victim or witness, random drug testing, electronic monitoring, curfews, maintaining employment, and drug and alcohol treatment. See, for example:
● Electronic monitoring: Evaluation of the Pretrial Release Pilot Program in the Mesa Municipal Court
● Court schedule notification: Coconino Court Hearing Call Notification Project
● Drug testing: Assessment of Pretrial Urine Testing in the District of Columbia
● Populations: The Impact of the Homeless Pretrial Release Project
Pretrial services legal and evidence-based practices (LEBP) are interventions and practices that are consistent with the legal and constitutional rights afforded to accused persons awaiting trial and methods research have proven to be effective in reducing unnecessary detention while assuring court appearance and the safety of the community during the pretrial stage. LEBP also attempt to minimize disparity in recommendations and supervision of similarly situated defendants. A component of this larger LEBP initiative involves the development and implementations of research-based guidelines for use by pretrial services agencies that are (1) risk-based, (2) consistent with legal and evidence-based practices, and (3) provide guidance for pretrial release recommendations and differential pretrial supervision.
Jurisdictions like Virginia, which did not have an objective and consistent guidance for making pretrial release recommendations, nor objective and consistent policy for providing differential pretrial supervision based on the risk assessment, have moved to implement LEBP (see the report, In Pursuit of Legal and Evidence-Based Pretrial Release Recommendations and Supervision).
Tailoring the response to defendants based on assessed risk and need is supported by a growing body of research on the effectiveness of various criminal justice initiatives including problem solving courts. Supervision should be tailored directly to the individual’s needs and release conditions. Low risk defendants may need nothing more than reminders of court appearance dates, while medium risk individuals may require periodic phone or office check-ins. In some jurisdictions, higher risk defendants are managed in the community through the use of intensive supervision programs that require frequent reporting with agency staff, regular drug tests, or participation in substance abuse treatment. The highest risk defendants can be supervised under even more stringent supervision, such as day reporting centers that require daily check-ins and substantive programming.
View findings from the Laura and John Arnold Foundation study on the impact of supervision on pretrial outcomes.
Diversion vs. Supervision
Pretrial diversion is defined as any voluntary option in which defendants undergo alternative criminal case processing that results in dismissal of the charge(s) if certain conditions are satisfied. According to national standards, the purpose of pretrial diversion is to:
● Enhance public safety by addressing the root cause of behaviors that lead to arrest;
● Reduce the stigma associated with a record of conviction;
● Restore victims; and
● Conserve justice system resources.
Pretrial diversion programs typically have uniform eligibility criteria, structured services and supervision, and dismissal of the charges pending successful completion of required conditions. Pretrial diversion programs conduct an assessment of risk and needs, and provide targeted supervision and programming based on that assessment. And similar to pretrial programs, pretrial diversion can be located in a variety of agencies. Characteristics of current programs can be found in the report, Pretrial Diversion in the 21st Century.
Pretrial supervision offers county justice systems intermediate options between release on recognizance and remand to jail for those defendants facing formal prosecution. Risk-based assignment to pretrial supervision can help assure a return to court, maintain public safety and conserve resources for supervision of high-risk caseloads. A continuum of pretrial supervision options can be housed anywhere in the justice system and should include responses appropriate for high-, medium- and low-risk defendants. Unlike pretrial diversion, pretrial supervision is not voluntary and does not require that a defendant admit guilt or take responsibility for the alleged crime. Successful completion of pretrial supervision does not result in charges being dropped or make any other guarantees in terms of disposition. It can, however, reduce recidivism by allowing defendants to maintain employment and ties to family and community — and save counties money by placing individuals in the least restrictive setting necessary to ensure public safety and return to court.