"Validated Risk Assessment Tools" in California detention and release procedures
(California Penal Code 1320.7 PC)

If California voters choose to pass Senate Bill 10 in the November 2020 referendum, California criminal courts will use validated risk assessment tools to help decide whether defendants should be released from jail pending their trial. Specifically, these tools help Pretrial Assessment Services (PAS) to determine whether a defendant is likely to either:

  • endanger others' safety, or
  • miss future court appearances

Defendants rated as low-risk of hurting others or missing court will be released on their own recognizance. Defendants rated as medium-risk may or may not be released. And high-risk defendants will remain jail pending the outcome of their case.

In this article, our Los Angeles criminal defense attorneys discuss the following topics regarding validated risk assessment tools in California:

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A validated risk assessment tool evaluates whether a California defendant is likely to hurt someone else or miss court if the defendant gets OR release.

1. Definition of "validated risk assessment tool" in California

A validated risk assessment tool is what helps pretrial assessment services (PAS) determine whether a newly-arrested defendant in California is at risk of hurting another person or missing future court appearances. The result that this tool yields will be a major factor in whether PAS decides to free a defendant on his/her own recognizance or to detain the defendant pending the trial.1

2. "Validated risk assessment tool" standards

Courts are still ironing out what exactly validated risk assessment tools will consist of if California voters choose to pass Senate Bill 10 in the November 2020 referendum. But they will probably include a combination of guidelines, questions, and flowcharts that will take into account a defendant's history of violence and missed court appearances. At minimum, validated risk assessment tools are required to meet the following five standards:

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Validated risk assessment tools have to meet strict standards.
  1. The tool must have been chosen and approved by the applicable criminal court;
  2. The tool must have been chosen in consultation with PAS (or equivalent entity providing pretrial risk assessments);
  3. Scientific research must indicate that the tool is accurate and reliable in calculating the risk of a person missing court or endangering public safety if the person is released pending the person's trial;
  4. Scientific research must indicate that the tool is accurate and reliable in minimizing bias; and
  5. The tool must come from a list of pretrial risk assessment tools approved by the California Judicial Council.2

3. Which defendants get evaluated by validated risk assessment tools

Not everyone arrested in California will undergo a pretrial risk assessment. Only people arrested for felonies and the following four misdemeanors will be evaluated using a validated risk assessment tool:

  1. Penal Code 646.9 - stalking;
  2. Penal Code 243e1 - domestic battery;
  3. Penal Code 273.5 - corporal injury on a spouse or cohabitant;
  4. Penal Code 273.6 - 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

Therefore, people who get arrested for misdemeanors other than the above-mentioned four do not submit to pretrial risk assessments. Instead, they will be released on their own recognizance.3

4. Risk scores for endangering others or missing court

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The purpose of pretrial risk assessments is to rate newly-arrested defendants as low-, medium-, or high-risk of causing harm or missing court.

PAS use validated risk assessment tools to help rank defendants as either low-, medium-, or high-risk for endangering the public or missing future court appearances. PAS then holds a prearraignment review to decide whether to release the defendant.

Whether PAS ranks a defendant as low-, medium-, or high-risk determines whether the defendant will be released on his/her own recognizance and under what conditions.

4.1. Low-risk

Low-risk defendants are unlikely to hurt others or miss required court hearings. PAS release low-risk defendants on their own recognizance and with the fewest reasonably necessary restrictions.

Low-risk defendants usually get released without any review by a judge and before the arraignment (which is the formal filing of charges).

4.2. Medium-risk

Medium-risk defendants are somewhat likely to hurt others or miss required court hearings. PAS may either release medium-risk defendants or keep them jailed pending the trial. Depending on the case, defendants who are released will be either:

PAS will impose the fewest restrictions necessary to reasonably ensure that the defendant will harm no one and appear in court as required.

Note that if prosecutors object to a defendant getting OR release, they can request a preventive detention hearing to ask the judge to continue detaining the defendant.

4.3. High-risk

High-risk defendants do not get released from jail following arrest. Instead, they will probably remain jailed pending the outcome of the case.4

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Legal References

  1. California Penal Code 1320.7 PC; see California Senate Bill 10 (2018).
  2. Id.
  3. California Penal Code 1320.10 PC.
  4. California Penal Code 1320.13 PC.

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