Pretrial Assessment


General Resources

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Specific Tools & Validation Studies

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Pretrial Assessment & Bias

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Statements in Support of Pretrial Assessment

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A pretrial assessment is an actuarial instrument or tool that provides an objective analysis of the probability that an arrested person will appear in court and not be arrested for new criminal activity if released before trial. The use of such tools can help judicial officers in setting any conditions of release. Most states authorize courts to consider only court appearance and public safety in making a pretrial release decision.

A typical pretrial assessment instrument is a questionnaire or form that categorizes individuals according to the probabilities of making all court appearances and not being arrested for new criminal activity. Most arrested people fall into categories showing very high probabilities of success on pretrial release, as the chart below illustrates.

 Risk Category Public Safety Rate Court Appearance Rate Percent of Defendants
 1 (lower) 95% 95% 20%
 2 85% 85% 49%
 3 77% 77% 23%
 4 (higher) 51% 51% 8%
The Colorado Pretrial Assessment Tool (CPAT)—Executive Summary

Developers of evidence-based pretrial assessment tools analyze data to identify factors that correlate with pretrial failure. Many tools are developed using a specific county’s or state’s data; one tool—the Public Safety Assessment—was developed using data collected from a national sample.

Since some factors are more predictive than others, tools “weigh” relevant factors to tally a final score. Pretrial assessment tools should be re-tested on a regular basis to ensure they remain valid for the population on which they are used.

While no pretrial assessment tool can eliminate racial and ethnic disparities elsewhere in the criminal justice system, care must be taken to assure that they do not contribute to such disparities. Researchers conducting pretrial assessment tool studies can design methodologies that will provide for race- and gender-neutral outcomes. These tools should be subjected to regular testing to detect and address any resulting racial or gender disparate impact.

PJI recommends that jurisdictions select tools that are open to statistically rigorous review, transparent about their development, factors and weighting, and race- and gender- neutral. Jurisdictions using pretrial assessment tools should also publish aggregate data on how their tool performs—including indicators of disparate impacts.

Results from pretrial assessments are meant to inform—not replace—the court’s discretionary decision making. Court officers—prosecutors, defenders, and judges—consider pretrial assessment results alongside other factors, such as the current charge and the arrested person’s individual circumstances.

The results of a pretrial assessment help courts determine any conditions that might be needed to assure that a released individual will be successful on pretrial release. Best practices call for combining pretrial assessment tools with a release framework that uses a person’s score and charges to suggest—not mandate—the least onerous conditions to support pretrial success.

Using the least onerous conditions is not only required by law—people are presumed innocent until proven otherwise—but it is also supported by research. Over-supervising individuals who already have a high likelihood of success during the pretrial period has been shown to make them more likely to be arrested and less likely to return to court.

Conditions of release may include

  • Providing current phone numbers for court date reminder texts
  • Phone or in-person check-ins
  • Curfews
  • Stay-away orders
  • Referrals to health assessments for voluntary services
  • Electronic monitoring (of limited utility)

Pretrial assessment instruments should NOT be used as the sole basis to detain or to predict likelihood of guilt. Nor should they be used in any trial-based or post-trial decisions. No tool predicts how an individual person will behave; they show only how that person compares to others who are similarly situated and provide evidence of how those others behaved in the past.

Although it may be tempting to convolute or combine pretrial assessment with needs assessment, most experts agree this is inappropriate. Courts have limited authority to compel legally innocent people to participate in mandated services, and many of these—substance use counseling, for example—require an admission of guilt that defies the fundamental presumption of innocence.