Pretrial Risk Assessments in California (Penal Codes 1320.7 – 1320.35 PC)

A pretrial risk assessment measures whether California criminal defendants are likely to endanger others’ safety or miss court should they be released on their own recognizance. If the criminal bail system ends following the November 2020 referendum on whether to pass Senate Bill 10, a defendant’s pretrial risk assessment — and not personal wealth — will determine whether he/she will remain jailed pending the trial.

Most people arrested for California misdemeanors will be released immediately without a pretrial risk assessment. Otherwise, arrestees will be assessed as either low, medium, or high-risk for posing a safety risk or failing to appear in court.

Low-risk offenders will get released on their own recognizance pending trial. Medium-risk offenders may or may not get released. And high-risk offenders may not be released.

Pretrial risk assessments are conducted by a court’s Pretrial Assessment Services (PAS) division. Pretrial risk assessments rely on validated risk assessment tools to help calculate defendants’ risk-level.

In this article, our Los Angeles criminal defense attorneys discuss:

• 1. Definition of pretrial risk assessments
• 2. Pretrial Assessment Services
• 3. Factors that determine risk
• 4. Prearraignment Reviews
• 5. Who gets pretrial risk assessments
• 6. When pretrial risk assessments are used
• 7. Validated risk assessment tools
• 8. Preventive Detention Hearings

1. Definition of pretrial risk assessment in California

A pretrial risk assessment is an evaluation that rates newly-arrested people in California as low-, medium-, or high-risk of either:

• posing a safety risk to others, or
• failing to appear at future court appearances

Defendants assessed as low-risk get released from jail on their own recognizance pending the trial. Defendants assessed as high-risk may not be released from jail pending the trial. Defendants assessed as medium-risk may or may not be released on their own recognizance pending the trial. (Scroll down to section 3 for more information on these classifications.)

If California voters choose to pass Senate Bill 10 in the November 2020 referendum, people arrested for felonies or certain misdemeanors in California will get a pretrial risk assessment. As discussed in the next section, these evaluations are conducted by Pretrial Assessment Services (PAS). PAS use a “validated risk assessment tool” to help determine whether a defendant is low-, medium-, or high risk.¹

2. Pretrial Assessment Services (PAS) in California

If California voters choose to pass Senate Bill 10 in the November 2020 referendum, every California criminal court will have a Pretrial Assessment Services (PAS) division. PAS will be comprised of court employees or employees of qualified local public agencies.

PAS will be tasked with conducting pretrial risk assessments on people arrested for felonies and certain serious misdemeanors. As discussed in the next section, PAS will consider various factors when calculating a defendant’s likelihood of posing a safety risk to someone else or missing court should the defendant be released pending trial.²

3. Factors that determine a defendant’s risk to others’ safety or missing court

There six main factors that PAS considers when weighing whether a defendant is likely to hurt another person or fail to appear at court:

1. the defendant’s risk level/score;
2. the defendant’s criminal charge(s);
3. the defendant’s criminal history;
4. any missed court appearances by the defendant within the last three (3) years;
5. any relevant information regarding the defendant’s risk to public safety; and
6. any relevant information regarding the defendant’s risk of failing to show up to required court appearances³

4. Prearraignment Reviews

A prearraignment review is the process where PAS determines whether to release newly-arrested defendants prior to their arraignment. (Note that defendants facing charges for serious or violent felonies are usually not entitled to prearraignment reviews.)

During a prearraignment review, PAS takes into account the following variables:

• the defendant’s PAS;
• any information relevant to the defendant’s custody status; and
• all relevant and available details provided by:
  • police,
  • the defendant,
  • victim(s), and
  • the prosecution and defense attorneys

Note that these prearraignment reviews have to occur within twenty-four (24) hours of the defendant’s booking. However, they can be postponed twelve (12) hours if PAS can demonstrate good cause.

Whether PAS ultimately rate a defendant as low-, medium-, or high-risk determines whether the defendant will be released and under what conditions.

4.1. Low-risk

Low-risk defendants pose little threat to public safety and are likely to appear at future court hearings. PAS release low-risk defendants on their own recognizance and with the fewest reasonably necessary restrictions.

Low-risk defendants generally get released without any review by a judge and before the arraignment (which is the formal filing of charges). These defendants are required to sign a form that includes these five (5) terms:

1. A pledge to appear at future court hearings;
2. A pledge to remain in California unless the defendant gets the court’s permission to leave;
3. An agreement to forego extradition to California if the defendant misses court and is arrested outside of California;
4. An acknowledgment that the defendant has been told of the repercussions and punishments for breaking the conditions of release; and
5. A pledge to follow all laws and court orders.

4.2. Medium-risk

Medium-risk defendants pose a moderate threat to public safety and may fail to attend future court hearings. PAS either release medium-risk defendants or continue detaining them. Defendants who do get released will be freed either:

• on their own recognizance, or
• on supervised own recognizance (for example, with a requirement to wear a tracking device or similar California electronic monitoring condition)

As with low-risk defendants, PAS impose the fewest restrictions on medium-risk defendants to reasonably maximize public safety and chances of the defendants returning to court.

Medium-risk defendants generally get released without any review by a judge and before the arraignment. These defendants are required to sign a form that includes these five (5) terms:

1. A pledge to appear at future court hearings;
2. A pledge to remain in California unless the defendant gets the court’s permission to leave;
3. An agreement to waive extradition to California if the defendant misses court and is arrested outside of California;
4. An acknowledgment that the defendant has been told of the repercussions and punishments for breaking the conditions of release; and
5. A pledge to follow all laws and court orders.

Note that every court has the right to adopt rules that increase the standards that medium-risk defendants have to meet in order to get released.

4.3. High-risk

PAS may not release high-risk defendants. Rather, these defendants will stay jailed pending the arraignment and possibly the trial.⁴

5. Who gets pretrial risk assessments in California

People arrested for a California felony or either of the following four misdemeanors will get pretrial risk assessments:

1. California crime of stalking;
2. California crime of domestic battery;
3. California crime of corporal injury on a spouse or cohabitant;
4. California crime of violation of a protective order if the defendant allegedly either:
   1. made threats to kill or harm the victim,
   2. engaged in violence against the victim, or
   3. went to the victim’s residence or workplace

Defendants arrested for misdemeanors other than the above four will not get pretrial risk assessments and will be released on their own recognizance.⁵

6. When pretrial risk assessments are used

Pretrial risk assessments can be used only during prearraignment reviews (discussed above in section 4) or California preventive detention hearings (discussed below in section 8). They may not be admitted as evidence in an ensuing trial or sentencing hearing.

Therefore, a defendant’s risk-level will in no way affect whether he/she is ultimately adjudged guilty or innocent or what sentence he/she will serve.⁶

7. Validated risk assessment tools

A validated risk assessment tool is what PAS will be using to determine whether a defendant is likely to post a public safety risk or to miss court appearances. A validated risk assessment tool must meet the following five standards:

1. has been selected and approved by the court;
2. has been selected in consultation with PAS (or another entity providing pretrial risk assessments);
3. has been demonstrated by scientific research to be accurate and reliable in assessing the risk of a person missing court or the risk to public safety if the person is released pending the person’s trial;
4. has been demonstrated by scientific research to be accurate and reliable in minimizing bias; and
5. has come from a list of approved pretrial risk assessment tools maintained by the California Judicial Council.

There is still some uncertainty about what these tools will comprise, but they will likely include various guidelines and flowcharts to help PAS evaluate.⁷

8. Preventive detention hearings in California

Whenever the prosecution objects to an arrested person getting released, the court holds a “preventive detention hearing.” This is where the judge hears arguments for and against keeping a defendant in jail pending the trial.

Preventive detention hearings typically occur at an arraignment or within three days afterward. They usually last just one session but may be extended if the defendant agrees.⁸

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