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After reading this guide, PSA project leaders will have a sound understanding of the major pretrial decisions that justice system professionals make about a person, from the decision by a law enforcement officer to initially contact someone, to the decision prosecutors make about filing charges and the judicial decision to release or detain someone pending trial. Project leaders will be able to help their implementation team consider how pretrial decisions are currently made; understand how the PSA may help inform future decisions; and create a pretrial Decision Framework for their jurisdiction.

Introduction

The purpose of creating the pretrial Decision Framework (DF) is to articulate the sequence of major pretrial decisions that justice system professionals in your jurisdiction make about criminally accused adults. Such a framework is critical for thinking about the PSA in the context of the local pretrial system. The PSA is used to measure a person’s pretrial risk, whereas the DF is used to help manage that risk. When completed, the DF provides a process and guidelines that enable jurisdictions to maximize the potential benefits of using the PSA, such as making fairer and more consistent pretrial decisions and providing transparency to the public. The process and activities described in this guide will help the implementation team clarify its jurisdiction’s pretrial decision-making process, better understand the legal environment in which those decisions are made, and highlight how the PSA may contribute to future decisions.

Your team should create this framework early in the PSA implementation process.

Guide to the Pretrial Decision Framework

It is important to have a sound understanding of your jurisdiction’s pretrial decision-making process when implementing legal and evidence-based pretrial practices.[1] When an implementation team designs its DF as described here, the jurisdiction’s pretrial justice system may become fairer, more efficient, and more lawful. Using the DF may contribute to improved public safety; more law-abiding behavior and a higher rate of court appearances among people who are released; limited use of expensive detention space; and incarceration of fewer people who can safely remain in the community.

To develop your jurisdiction’s DF, every member of the implementation team should ideally have basic knowledge about the history and legal foundations of pretrial justice;[2]

empirical research on pretrial risk assessment, release, detention, and risk management;[3] national pretrial standards for best practices;[4] and your state’s pretrial laws and rules.[5]

The Pretrial Decision Framework

The DF illustrates and describes the sequence of major pretrial decisions that justice system professionals make about a criminally accused adult, and it highlights where and how the PSA will be used to help inform those decisions. The DF applies to anyone who is subject to a decision about release or detention and/or release conditions. The exact sequence of these decisions differs from jurisdiction to jurisdiction, and yours may have different or additional pretrial decision points. This guide explains how your implementation team can modify the related resource, Example Decision Framework, to make it accurate for your locality.

Example of a Pretrial Decision Framework

Decision 1: Law Enforcement Officer Decides to Make Initial Contact.

The officer decides whether to make initial contact with the person for criminal justice purposes.

  • If no, the framework process ends.
  • If yes, go to Decision 2.

Decision 2: Law Enforcement Officer Decides to Divert the Person, Issue a Citation, or Make a Custodial Arrest.

The officer decides whether to pursue no action, divert the person to services, issue a citation, or make a custodial arrest.

  • If no action, the framework process ends.
  • If yes to diversion, the person is referred to relevant services and the process ends.
  • If yes to a citation, the process ends.
  • If yes to a custodial arrest, the person is booked into jail; go to Decision 3.

Decision 3: Judicial Officer Determines Probable Cause.

A judicial officer determines whether there was probable cause for the custodial arrest.

  • If no, charges are dropped, the person is released from custody, and the framework process ends.
  • If yes, go to Decision 4.

Decision 4: Prosecutor Decides Whether to File Criminal Charges.

The prosecutor decides to file criminal charges (and if so, which charges), divert the person to a pre-charge diversion program, or not to file charges.

  • If diversion or no charges, the person is released from custody and the framework process ends.
  • If yes to criminal charges, go to Decision 5.

Decision 5: Judicial Officer Decides to Release the Person or Hold the Person for a Release or Detention Hearing.

At the first-appearance hearing, the judicial officer decides to release the person from custody or hold the person until a release or detention hearing. The judicial officer may use the PSA to help inform this decision.

  • If yes to a release or detention hearing, go to Decision 6.
  • If release, go to Decision 7.

Decision 6: Judicial Officer Decides to Release or Detain the Person.

At the release or detention hearing, the judicial officer decides whether to detain or release the person prior to trial. The judicial officer may use the PSA to help inform this decision.

  • If detention, the framework process ends.[6]
  • If release, go to Decision 7.

Decision 7: Judicial Officer Decides Pretrial Release Conditions.

The judicial officer orders release and sets the least-restrictive release conditions to provide reasonable assurance of court appearance and no new criminal activity. The judicial officer may use the PSA and the jurisdiction’s Release Conditions Matrix to help inform this decision. After release conditions are set, the framework process ends.[7]

Customizing the Pretrial Decision Framework

Members of the implementation team create a framework by customizing the Example Decision Framework. A subcommittee or the full team should be responsible for this task. If a subcommittee does this work, its members should later present the DF to the full team for approval. Critical participants are representatives from the criminal justice agencies that have a role in pretrial decision-making, perform day-to-day pretrial practices, and/or are affected by pretrial policies and practices. These representatives usually include judicial officers, prosecutors, defense attorneys, pretrial services staff, detentions staff, court administrators, law enforcement officers, and victim services staff.

This section provides guidance to help members of the implementation team revise and customize the Example Decision Framework for their jurisdiction. The changes the team makes to the DF may include revising the number and order of the decisions; adding or removing decision points; modifying which professional makes the decision; and/or deciding whether the PSA may help inform certain pretrial decisions. As a result, it is possible that no two jurisdictions, including those within the same state, will have exactly the same DF. The project leader should provide this guide and the Example DF to members of the implementation team or a subcommittee so that they can complete the customization.

Decision 1: Law Enforcement Officer Decides to Make Initial Contact.

The officer decides whether to make initial contact with the person for criminal justice purposes.

  • If no, the framework process ends.
  • If yes, go to Decision 2.

Summary. The first decision point acknowledges that a law enforcement officer makes the initial decision of whether to approach or contact a person. If the officer makes contact, this encounter starts the framework process. Note that if the law enforcement officer has an arrest warrant for the person, the framework process begins instead at Decision 4 or 5.

Instructions. Your implementation team may want to use the text as written in the Example DF or include the laws, policies, procedures, and/or guidelines that law enforcement officers in your jurisdiction use to make this decision. You can also edit this text as necessary to reflect the title of the person who typically makes this decision in your locality. Although some jurisdictions focus on Decisions 5 through 7 and exclude Decisions 1 through 4 from their framework, it is useful to include all decisions. Your team should discuss how practices at each of these decision points affect practices at subsequent points.

Decision 2: Law Enforcement Officer Decides to Divert the Person, Issue a Citation, or Make a Custodial Arrest.

The officer decides whether to pursue no action, divert the person to services, issue a citation, or make a custodial arrest.

  • If no action, the framework process ends.
  • If yes to diversion, the person is referred to relevant services and the process ends.
  • If yes to a citation, the process ends.
  • If yes to a custodial arrest, the person is booked into jail; go to Decision 3.

Summary. After deciding to contact a person, the law enforcement officer must then decide whether to take no action, divert the person to services, issue a citation, or make a custodial arrest (and then book the person into jail). A diversion to services may pertain to behavioral health, shelter or other housing, food, or other social services.

Some jurisdictions use PSA results to help inform this decision. It is important to note, however, that the PSA was not developed to assist with this decision, but for use with adults who are charged with criminal offenses that carry potential penalties of incarceration, after they are booked into jail. The extent to which the PSA can assess pretrial risk among people who are not booked into jail is unknown.

Instructions. The team may want to use the text as written in the Example DF or include the laws, policies, procedures, and/or guidelines that law enforcement officers in your jurisdiction use to make this decision. The team should also edit this text as necessary to accurately reflect the decision-making process in your jurisdiction.

You may also need to decide whether PSA results will help inform this decision. A determining factor may be the availability of the data to score the PSA. Unless the PSA will be auto-populated in your system, it may be impossible to have PSA scores available for this decision. The team may also consider limiting the use of the PSA at this decision point to situations in which the person would otherwise be booked into jail or the alleged offense is punishable by incarceration.

Decision 3: Judicial Officer Determines Probable Cause.

A judicial officer determines whether there was probable cause for the custodial arrest.

  • If no, charges are dropped, the person is released from custody, and the framework process ends.
  • If yes, go to Decision 4.

Summary. This is often the first decision a judicial officer makes about a criminal case. The U.S. Supreme Court has ruled that probable cause on a warrantless arrest must be determined within 48 hours of a person’s arrest, although this determination is usually made well before 48 hours elapse.[8] The Supreme Court has also found that probable cause must be determined as a prerequisite to “any significant pretrial restraint of liberty.”[9] Your state laws and court rules may set additional parameters for finding probable cause. If the judicial officer finds that probable cause exists for the custodial arrest, the criminal case continues. If not, the process ends.

Instructions. The implementation team should discuss the process flow of a criminal case in your jurisdiction and make sure that your DF reflects the part of the process when the probable cause decision is made and how it is made. For instance, in some jurisdictions, the decision is made during the first-appearance hearing; in other jurisdictions it is made earlier. In other places, because pretrial detention and “significant pretrial restraints” are used sparingly (such as in Washington, D.C.), probable cause is not automatically determined in every case. You may also want to include the laws, policies, procedures, and/or guidelines that your judicial officers use to make this decision.

Decision 4: Prosecutor Decides Whether to File Criminal Charges.

The prosecutor decides to file criminal charges (and if so, which charges), divert the person to a pre-charge diversion program, or not to file charges.

  • If diversion or no charges, the person is released from custody and the framework process ends.
  • If yes to criminal charges, go to Decision 5.

Summary. After an arrest, the next step is for a prosecutor to decide whether to file criminal charges, divert the person to a pre-charge diversion program, or not pursue the matter.

Instructions. Your implementation team or a subcommittee should discuss the process flow of a criminal case in your jurisdiction and revise the Example DF to reflect the part of the process when this decision is made. The team may want to use the text as written in the Example DF or include the laws, policies, procedures, and/or guidelines that prosecutors in your jurisdiction use to make this decision. You should also edit this text as necessary to reflect the decision-making process in your jurisdiction.

Decision 5: Judicial Officer Decides to Release the Person or Hold the Person for a Release or Detention Hearing.

At the first-appearance hearing, the judicial officer decides to release the person from custody or hold the person until a release or detention hearing. The judicial officer may use the PSA to help inform this decision.

  • If yes to a release or detention hearing, go to Decision 6.
  • If release, go to Decision 7.

Summary. At the first-appearance hearing, a judicial officer decides to release the person or to schedule a hearing to decide whether to intentionally detain the person based on a prediction of future risk to public safety or of flight, often referred to as “holding the person without bail.”[10] Someone may be detained in this manner only if the person or charge meets the detention eligibility criteria listed in the state’s constitution, statutes/codes, and/or court rules. For instance, some states grant a right to bail for anyone except defendants charged with capital offenses (the exception to bail, or the “detention eligibility net”), and upon showing that the proof is evident or presumption of guilt is great (the “further limiting process.”). It is important to know that when states create these detention eligibility nets and limiting processes that provide a lawfully enacted process for intentional pretrial detention, those states may not purposefully detain a person beyond the established net, as that would nullify or negate the net itself.[11]

If a person cannot be intentionally detained (that is, held without bail), the person has a right to bail. Based on the law, it is advisable to view such people as having a right to release; this follows the general presumption of release inherent in the legal principles underlying bail itself and avoids various legal claims that are typically triggered by detention.[12]

Thus, to make this decision—whether to release an individual or hold a release or detention hearing—the judicial officer must first determine whether the person’s charge or circumstances meet the detention eligibility criteria listed in the given state’s constitution, statute/code, and/or court rules. If so, the person still may be released pretrial for various reasons. For example, in some states, the judicial officer will not hold a detention hearing unless the prosecution requests it.

PSA results may help inform these types of decisions because all states’ pretrial detention laws are premised on risk of flight or future dangerousness—or both. The PSA assesses the pretrial risk of failing to appear in court, committing new criminal activity, and committing new violent criminal activity. It is important to note, however, that the PSA results should not override your state’s existing detention eligibility net and process or determine the decision to release or detain someone; to make that decision, a judicial officer may consider the PSA results, along with other relevant information.

If the judicial officer decides to hold a hearing, it must be held consistent with applicable state and federal laws, such as providing counsel, providing certain due process protections, and making the requisite findings. Any perceived gaps in state law can be supplemented through a reading of the opinion in United States v. Salerno or the American Bar Association Standards of Pretrial Release.[13] The detention hearing is described in Decision 6.

If a person is not eligible for a detention hearing by law, the judicial officer should treat the individual as someone who will be released pending trial. The officer may set conditions of release, as described in Decision 7.

Instructions. Many state laws are confusing on the points just described. What’s more, the judicial officer’s deliberate pretrial release or detention decision described may differ from practices in your jurisdiction. Nevertheless, the framework includes this decision as described here because it is consistent with legal and evidence-based pretrial practices and can help maximize the benefits of using the PSA.

To complete the DF, the implementation team will need to refer to the state’s constitution, statutes/codes, and/or court rules to determine the criteria for lawfully detaining a person pretrial. The team will need to understand its jurisdiction’s detention eligibility net and further limiting process even when they are not explicit. The team should also decide whether the PSA can help inform this decision; that will depend on your state’s detention eligibility criteria and limiting process.

Some jurisdictions adopting the PSA have a qualified staff member or a national expert review their local and state pretrial laws for this purpose.[14] Your implementation team may also want to seek the advice of national pretrial legal experts to help navigate challenging legal issues.[15] Team members should be aware that many states are beginning to change their release and detention laws after a close examination and comparison to current legal and evidence-based practices. At the very least, national pretrial legal experts can help educate team members and other stakeholders about the rapidly changing laws concerning pretrial release and detention and how those laws can affect the jurisdiction’s DF and thus, its pretrial decisions.

The team should edit the Example DF to specify the mechanisms available to the judicial officer for temporarily detaining a person until a hearing is held. Depending on state law or court rule, the mechanism may be in the form of a “no-bond hold,” which is preferable, or a bond with a secured financial condition in an amount that would provide the court with reasonable assurance that the person will appear at the release or detention hearing.

Decision 6: Judicial Officer Decides to Release or Detain the Person.

At the release or detention hearing, the judicial officer decides whether to detain or release the person prior to trial. The judicial officer may use the PSA to help inform this decision.

  • If detention, the framework process ends.[16]
  • If release, go to Decision 7.

Summary. If the judicial officer determines that a person is eligible for detention (that is, the individual can be “held without bail”) under state law, the officer must hold a hearing in order to lawfully detain the person pretrial. As noted, being eligible for detention does not determine a decision to detain someone, because some processes require a motion or other preconditions to proceed. What’s more, virtually all states have a “further limiting process”: This means that not only must the defendant be charged with an eligible offense (such as a capital offense), but the proof must be evident and the presumption of guilt must be great or a substantial risk of danger or flight must be found. If these other conditions are not met, the judicial officer should treat the defendant as a person to be released.[17]

Detention hearings must adhere to certain fundamental legal foundations for detention, most of which are articulated in United States v. Salerno.[18] Although Salerno involved a facial challenge[19] to the Federal Bail Reform Act of 1984, there is good reason for states to emulate the detention process the Supreme Court approved in that case. States can use Salerno (and cases cited therein) to fill any perceived gaps in their own state detention process. For example, if state law does not specify a burden of proof to guide the judicial officer in assessing the risk of danger or flight, Salerno helps by approving a clear and convincing standard for evidence of risk and for determining that no less-restrictive alternative conditions suffice to manage that risk. The American Bar Association Standards for Pretrial Release can also be used to fill any gaps in state law.[20]

If the judicial officer decides to detain, the person is ordered detained (denied release or “held without bail”) until case disposition or until circumstances change (such as if charges are dropped, not filed, or reduced such that the charges no longer make the person eligible for detention; or if a judicial officer finds that the person’s pretrial risk has sufficiently decreased or could be reasonably managed outside of secure detention).

If someone is not eligible for detention or the judicial officer decides to release the person (even if the individual is eligible for detention), the officer may then set conditions of release, a process described in Decision 7.

Instructions. It is possible that your jurisdiction has not been holding detention hearings as described here and that the common practice is, instead, to detain persons using other means (such as by ordering secured financial conditions). Nevertheless, implementation teams should follow the detention process described here because it is consistent with state and federal law. As noted earlier, your team may want to seek the advice of national pretrial legal experts to help navigate these challenging issues.

The implementation team should edit the Example DF to reflect the procedures your jurisdiction uses to hold pretrial release or detention hearings. Your DF should include all aspects of the detention hearing—the detention eligibility net and limiting process, burden of proof, due process procedural elements, and statutory factors—whether they are derived from state law, Salerno, or the American Bar Association standards.

PSA results may help inform this decision because all jurisdictions base their pretrial detention decision on the risk of flight, risk to public safety, or both. The PSA assesses the pretrial risk of failing to appear in court, committing new criminal activity, and committing new violent criminal activity. Again, the PSA results should not override your state’s detention eligibility net and limiting process and should not be the sole criteria used in determining whether to detain or release a person. Judicial discretion is paramount, and PSA results give judicial officers additional information to help guide their decisions. 

Decision 7: Judicial Officer Decides Pretrial Release Conditions.

The judicial officer orders release and sets the least-restrictive release conditions to provide reasonable assurance of court appearance and no new criminal activity. The judicial officer may use the PSA and the jurisdiction’s Release Conditions Matrix to help inform this decision. After release conditions are set, the framework process ends.[21]

Summary. Once a judicial officer decides to release the person—usually at the first-appearance hearing or detention hearing—the officer must also decide the conditions of release. Pursuant to law, these must be the least-restrictive conditions necessary to provide the judicial officer reasonable assurance that the person will appear at future court hearings and, in virtually all states, will not engage in criminal activity during pretrial release.[22] By statute or court rule, most states mandate some pretrial release conditions for all people; additional conditions may be set according to the judicial officer’s discretion and as authorized by statute or court rule.

Examples of release conditions permissible in most states include pretrial monitoring or supervision, testing for alcohol or other drugs, electronic monitoring, and secured or unsecured financial conditions. In many instances, judges release people on their own recognizance and impose only minimal conditions (such as those mandated by statute to apply to all released persons). See the Frequently Asked Question regarding the use of secured financial conditions that result in the person’s pretrial incarceration.

The PSA Release Conditions Matrix helps inform decisions about release conditions. Once developed, the matrix associates the scores on the two PSA scales with local options for pretrial release conditions.

Instructions. After the implementation team or a subcommittee develops its Release Conditions Matrix, include it in your DF. The Guide to the Release Conditions Matrix provides instructions.

 

Frequently Asked Questions

Q: We almost never hold release or detention hearings. Our state doesn’t have a process for holding preventive detention hearings. Should we still include Decision 6 in our DF?

A: Of the many complex legal principles applicable to the pretrial release and detention decision, one of the most fundamentally sound is that a defendant should be given a hearing prior to intentionally being detained. Some jurisdictions have grown accustomed to relying on a line of state and federal court excessive bail cases that allow the use of secured financial conditions to “unintentionally” detain defendants—that is, the judicial officer does not put on the record an intention to detain the person but orders money bail in an amount that the defendant cannot meet and it results in the defendant’s detention.[23] But through this use of secured financial conditions, jurisdictions end up detaining defendants who may not otherwise be eligible for detention based on the state’s constitution, statutes/codes, or court rules. The result is that some jurisdictions do not use any lawfully enacted intentional detention process, and thus defendants are not given a meaningful hearing prior to being detained. But several recent court decisions based on due process and equal protection grounds threaten to end this practice of using money bail as a method to detain defendants. Thus, it is possible that your jurisdiction is detaining persons pretrial in ways that would not be considered lawful by those courts.

The DF builds on a foundation of the most up-to-date legal and evidence-based practices. A fundamental principle of the DF is that detention is ordered intentionally: It is a purposeful decision dependent on the state’s detention eligibility net and limiting process and based on risk to community safety or of flight. Intentional detention always requires a due process hearing. The DF does not entail using secured financial conditions for the purpose of detaining a defendant.

Members of the implementation team should become knowledgeable about legal and evidence-based pretrial practices (if they aren’t already) to help understand how and to what extent Decision 6 will apply to your jurisdiction. Developing a pretrial Decision Framework as part of PSA implementation may illuminate discrepancies between what is currently done and what should be done to follow the law and in ways that are consistent with research. This process encourages teams to understand the law in order to use the PSA in the most legally sound manner; this necessarily includes holding a due process hearing prior to intentional pretrial detention.

 

Q: Our jurisdiction’s judicial officers detain some defendants by setting a secured financial condition in amounts they probably cannot afford. The DF does not seem to take this practice into account. How should we customize the DF if we want to continue this practice or think it will continue?

A: This situation tends to arise when a judicial officer is presented with a defendant who is assessed as posing a high risk of flight or to public safety, but the defendant is not eligible for purposeful detention within a state’s existing detention eligibility net. In a purposeful release and detention system, this is the only circumstance in which the issue of using money bail to detain a defendant should arise. The law is rapidly evolving in this area, but jurisdictions currently have the following three options for this relatively rare situation:

First, a jurisdiction could recommend to judicial officers that they release the person and use bail revocation (when available) if the defendant engages in pretrial misbehavior.[24] Of the three options, not detaining a defendant who falls outside the jurisdiction’s detention eligibility net is the better practice, for a number of legal reasons and based on research. The legal reasons include potential claims involving right to bail, excessive bail, due process, and equal protection. The research on pretrial risk management demonstrates not only that pretrial defendants succeed far more often than they fail (this is typically true even for people considered to pose the highest risk) but also that it is highly unlikely that pretrial defendants will act in the way community members most fear—for instance, committing a serious or violent crime once released or fleeing to avoid prosecution.[25]

Second, a jurisdiction could allow a judicial officer to use secured financial conditions for these cases, given that bail jurisprudence is underdeveloped and that few directly applicable cases have found money bail practices clearly unlawful. As noted previously, unintentional detention (when the judicial officer does not put on the record an intention to detain the person but orders money bail in an amount that the defendant cannot meet, resulting in detention) is technically lawful under the Eighth Amendment and most states’ excessive bail clauses. However, as noted earlier, allowing money to detain an otherwise bailable defendant relies on a loophole in excessive bail jurisprudence that is likely to be abrogated through various cases brought under the federal Due Process and Equal Protection Clauses, or some state right-to-bail clauses.[26] Thus, use of the current excessive bail loophole to “unintentionally” detain a defendant may soon be an obsolete practice.

Third, although not recommended, a jurisdiction could continue to allow judicial officers to use secured financial conditions to detain defendants intentionally. This practice is likely unlawful under any state’s right-to-bail provision, federal (and possibly state) excessive bail clauses, state and federal due process clauses, and the federal equal protection clause.[27]

Overall, creating a pretrial Decision Framework and implementing the PSA present opportunities for your jurisdiction to discuss these issues, eliminate clearly or potentially unlawful practices, and replace them with more lawful or more effective ones if needed.

 

Q: In our jurisdiction, the PSA will not be used to inform any decisions that law enforcement officers or prosecutors make. It will be used only by judicial officers to help inform Decisions 5 through 7. Do we still need to include Decisions 1 through 4 in our Decision Framework?

A: You should include all decision points in the framework and your team should discuss how practices at these points affect practices at subsequent decision points. The entire DF is critical to helping your team consider the use of a risk assessment in the context of your local pretrial system.

 

[1] For an overview of legal and evidence-based pretrial practices, see VanNostrand, M. (2007). Legal and Evidence-Based Practices: Application of Legal Principles, Laws, and Research to the Field of Pretrial Services. Boston: Crime and Justice Institute; and Washington, DC: U.S. Department of Justice, National Institute of Corrections.

[2] For history and legal foundations, see Schnacke, T.R. (2014). Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform. Washington, DC: U.S. Department of Justice, National Institute of Corrections; and Schnacke, T.R. (2014). Money as a Criminal Justice Stakeholder: The Judge’s Decision to Release or Detain a Defendant Pretrial. Washington, DC: U.S. Department of Justice, National Institute of Corrections. For more on how to apply these foundations to pretrial decisions, including creating new laws, see Schnacke, T.R. (2017). “Model” Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention. Golden, CO: Center for Legal and Evidence-Based Practices; Criminal Justice Policy Program at Harvard Law School. (2016). Moving Beyond Money: A Primer on Bail Reform. Cambridge, MA: Criminal Justice Policy Program at Harvard Law School; and Pilnik, L., Hankey, B.M., Simoni, E., Kennedy, S., Moore, L.J., & Sawyer, J. (2017). A Framework for Pretrial Justice: Essential Elements of an Effective Pretrial System and Agency. Washington, DC: U.S. Department of Justice, National Institute of Corrections.

[3] See VanNostrand, M., Rose, K.J., & Weibrecht, K. (2011). State of the Science of Pretrial Release Recommendations and Supervision. Rockville, MD: Pretrial Justice Institute; VanNostrand, M., & Keebler, G. (2009). Pretrial Risk Assessment in the Federal Court. Arlington, VA: U.S. Department of Justice, Office of the Federal Detention Trustee; Lowenkamp, C.T., & VanNostrand, M. (2013). Exploring the Impact of Supervision on Pretrial Outcomes. Houston: Laura and John Arnold Foundation; Stevenson, M. & Mayson, S.G. (2017). Pretrial Detention and Bail. Reforming Criminal Justice 3: 21-47.

[4] American Bar Association. (2007). ABA Standards for Criminal Justice: Pretrial Release, Third Edition. Chicago: American Bar Association.

[5] For guidance on how to analyze your local and state pretrial laws, see Pretrial Justice Institute. (2017). Guidelines for Analyzing State and Local Pretrial Laws. Rockville, MD: Pretrial Justice Institute; and Pretrial Justice Institute. (2016). Key Features of Holistic Pretrial Justice Statutes and Court Rules. Rockville, MD: Pretrial Justice Institute.

[6] The framework process may be repeated for a person if circumstances change (for example, if charges are dropped, not filed, reduced, or raised) such that the person’s ordered detention and denial of release must be reconsidered, pursuant to the law.

[7] After release conditions are set, the person may or may not be physically released from custody on the current charge(s). If the person does not have a warrant or hold from another case, the person is physically released. If the individual does have a warrant or hold, an authorized person notifies the other court of jurisdiction or its designee (such as a local jail) about the individual’s authorized release on the current case and the potential need for transport to that court or jurisdiction.

[8] County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

[9] Gerstein v. Pugh, 420 U.S. 103 (1975).

[10] Courts often draw a distinction between “intentional” detention (when the judge makes a record to detain and intends to keep the defendant incarcerated) and “unintentional” detention (when the judge makes no record to detain on purpose, but the defendant is incarcerated as a result of failing to meet certain pretrial release conditions, such as a secured financial condition, that is, money bail). See Schnacke, T.R., “Model” Bail Laws, 48-61.

[11] There is wide variation among the states concerning nets and limiting processes; some are extremely narrow and some are so wide that they resemble no net or limiting process at all. Nevertheless, they exist in every state because, among other things, the Supreme Court has said that pretrial liberty is “the norm” and pretrial detention must be “the carefully limited exception.” See United States v. Salerno, 481 U.S. 739, 755 (1987).

[12] See United States v. Salerno, which declares liberty as the norm, given the extensive limitations necessary for a lawful detention process. Both state and federal courts interpreting excessive bail clauses have ruled that financial conditions of bond are not excessive simply because they are unattainable. However, these courts have often drawn a distinction between “unintentional” detention (when the judge makes no record to detain on purpose) and “intentional” detention (when the judge makes a record to intentionally detain). Courts viewing a record of intentional detention will typically declare the amount excessive. See, for example, Galen v. County of Los Angeles, 477 F.3d 652 (9th Cir. 2007), which says, “The court may not set bail to achieve invalid interests.” This ruling cites Wagenmann v. Adams, 829 F.2d 196, 213 (1st Cir.1987), which affirms a finding of excessive bail when the facts established that the state had no legitimate interest in setting bail at a level designed to prevent a person from posting bail.) See also State v. Brown, 338 P.3d 1276, 1292 (N.M. 2014), which found that “[i]ntentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether.” Moreover, a new wave of bail jurisprudence is being created by people who are avoiding excessive bail precedence altogether by bringing claims under the Equal Protection and Due Process clauses of the U.S. Constitution, and those cases have the potential to render the right to bail into a right to release. This part of the law is discussed by Schnacke, T.R., in “Model” Bail Laws, at 161-163.

[13] United States v. Salerno. See also the discussion of Salerno by Schnacke, T.R., in “Model” Bail Laws, at 81-86. For the American Bar Association standards, see American Bar Association Standards for Criminal Justice: Pretrial Release, Third Edition. (2007).

[14] See Pretrial Justice Institute, Guidelines for Analyzing State and Local Pretrial Laws.

[15] In addition to the case law noted previously, courts have also struck down some state constitutional “no bail” or detention provisions as unconstitutional for various reasons. See Lopez-Valenzuela v. Arpaio, 770 F. 3d 772 (9th Cir. 2014); and Simpson v. Miller, 387 P. 3d 1270 (Ariz. 2017). These cases are also prompting states to rethink their current pretrial detention laws.

[16] The framework process may be repeated for a person if circumstances change (for example, if charges are dropped, not filed, reduced, or raised) such that the person’s ordered detention and denial of release must be reconsidered, pursuant to the law.

[17] Be sure to review state supreme court rulings that may alter the general rules. See Pretrial Justice Institute, Guidelines for Analyzing State and Local Pretrial Laws.

[18] 491 U.S. 739 (1987).

[19] According to U.S. constitutional law, “a facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void.”

[20] See American Bar Association. ABA Standards for Criminal Justice. For an additional theoretical model containing various elements needed for lawful detention, see Schnacke, T.R., “Model” Bail Laws, at 172-184.

[21] After release conditions are set, the person may or may not be physically released from custody on the current charge(s). If the person does not have a warrant or hold from another case, the person is physically released. If the person does have a warrant or hold, an authorized person notifies the other court of jurisdiction or its designee (such as a local jail) of the person’s authorized release on the current case and the potential need for transport to that court or jurisdiction.

[22] See cases cited in Schnacke, T.R. Fundamentals of Bail, at 55-57.

[23] As noted earlier, an unfortunate byproduct of these cases is that they permit intentional detention so long as the judge makes no record of intentional detention, a practice that began in earnest in the 1960s and is sometimes called “sub rosa” intentional detention. Like overt intentional detention, this sub rosa intentional detention effectively negates the lawfully enacted detention eligibility net and limiting process under current law.

[24] Note, however, that some state supreme courts have ruled that once a person is “bailable,” the individual must stay released despite evidence of pretrial misbehavior, such as failing to appear or being arrested for new criminal activity.

[25] See, for example, the pretrial outcomes in Washington, D.C., which releases more than 90 percent of defendants pretrial and where 91 percent of them remain arrest-free while their cases are pending and 90 percent make all scheduled court appearances. Pretrial Services Agency for the District of Columbia. Performance Measures. Washington, DC: PSA.

[26] See for example ODonnell v. Harris County et al. U.S. Court of Appeals, Fifth Circuit, 2017).

[27] See Schnacke, T.R., Money as a Criminal Justice Stakeholder, footnotes 57-60, where the author discusses Stack v. Boyle, 342 U.S. 1 (1951), which courts and scholars cite for the proposition that financial conditions set with the purpose to detain are not permissible.