The purpose of creating the pretrial Decision Framework is to articulate the sequence of major pretrial decisions made in your jurisdiction that impact people who are charged with a crime. This exercise will help ensure that your team—and each of its members—has a thorough and shared understanding of your pretrial system. It will also help your team understand the parts of the system that are working well and the ways in which it can be improved.

When completed, the Decision Framework provides a process and guidelines that enable local decision makers 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 policy team clarify their 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.

To develop your jurisdiction’s Decision Framework, every member of the policy team should ideally have basic knowledge about the history and legal foundations of pretrial justice; [1] empirical research on pretrial assessment, release, detention, and assistance; [2] national pretrial standards for best practices; [3] and your state’s pretrial laws and rules. [4] When the team is knowledgeable about these topics, the process of creating the framework proceeds more efficiently and the end result may better achieve the team’s pretrial goals.

Many jurisdictions find it useful to consult with national pretrial experts to educate the policy team and other stakeholders about the topics listed above, and to assist them in creating and using a Decision Framework.

Members of the policy 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 Decision Framework 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, detention staff, court administrators, law enforcement officers, and victim services staff.

This section provides guidance to help members of the policy team revise and customize the Example Decision Framework for their jurisdiction. The exact sequence of the pretrial decisions differs from jurisdiction to jurisdiction, and yours may have different, fewer, or additional decision points. This guide explains how your policy team can modify the Example Decision Framework to make it accurate for your locality. The changes your team makes to the Decision Framework may include changing the number and order of the decisions; adding or removing decision points; modifying which professional makes the decision; and deciding whether the PSA may help inform certain pretrial decisions. As a result, it is possible that no two jurisdictions, including those in the same state, will have exactly the same Decision Framework. The team lead should provide this guide and the Example Decision Framework to members of the policy 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 policy team may want to use the text as written in the Example Decision Framework 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. Your team should discuss how practices at each decision point 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 summons, 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.

Many national organizations have issued standards or guidance encouraging the use of citations or summons in lieu of custodial arrest. The National Institute of Corrections (NIC) has noted that, in addition to decreasing the burden on jails, citations and summonses can reduce collateral consequences for the person charged and enhance community safety (through de-escalation). Use of citations can also improve efficiency—issuing a citation takes a lot less time than processing a custodial arrest. [5] The American Bar Association echoes this guidance, stating that citations should be used as an alternative to custodial arrest “to the maximum extent consistent with the effective enforcement of the law.” [6] The National Association of Pretrial Services Agencies (NAPSA) also supports options that lead to the release of people before their first appearance hearing. [7] As part of New Jersey’s efforts to improve its pretrial system, the state adopted policies and practices aimed at encouraging law enforcement to use summonses. Since then, officers have made fewer custodial arrests—particularly for lower-level charges—and overall crime rates and violent crime rates across the state have continued to decline. [8]

Some jurisdictions use PSA results to help inform the decision to issue a citations or summons, or to make a custodial arrest. It is important to note, however, that the PSA was not developed to assist with this decision, but rather for use with people 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 people who are not booked into jail is unknown.

Instructions. The policy team may want to use the text as written in the Example Decision Framework 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 should limit the use of the PSA at this decision point to situations in which the person would otherwise be booked into jail.

Decision 3

A professional from an agency with delegated release authority decides to release or hold the person prior to a first appearance hearing.

A professional from an agency with delegated release authority decides to release the person from custody immediately after booking or hold the person until the first appearance hearing. The judicial officer or agency may use the PSA results to help inform this decision.

• If yes to release, then go to Decision 8.
• If no to release, then go to Decision 4.

Summary. In many states, people may be released from custody prior to the first appearance hearing with a judicial officer if they meet criteria established by law and/or court rules. The criteria typically include the type of charge—and may also take into account criminal history, the facts and circumstances of a case, and/or the results of a pretrial assessment. This release decision is usually made by a person from a designated agency, such as the sheriff’s office or pretrial services agency, if authorized by a standing court order or through court rules that set forth the criteria for release (known as “delegated release authority”). Both NIC and NAPSA consider delegated release authority an essential element of an effective pretrial system. [9] The two agencies also endorse courts permitting corrections or pretrial staff to release certain people prior to an initial court appearance, particularly if eligibility is limited to those facing lower-level charges and having a high likelihood of appearing in court pretrial and remaining arrest-free while on pretrial release. [10]

Instructions. The policy team should discuss whether delegated release authority is already available in your jurisdiction. If it is available, team members should discuss whether the criteria for release are consistent with their pretrial goals. If the courts in your jurisdiction have not established such release authority, the policy team should consider initiating discussions with the judiciary to determine whether such authority would improve the pretrial system.

Your policy team may want to use the text as written in the Example Decision Framework or include the laws, policies, procedures, and/or guidelines that agencies in your jurisdiction use to make this decision.

Decision 4

Judicial officer determines probable cause.

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

• If no, charges are dropped, the person is released from custody, and the framework process ends.
• If yes, go to Decision 6.

Summary. The U.S. Supreme Court has ruled that when there is any “significant pretrial restraint of liberty,” probable cause on a warrantless arrest must be determined “promptly.” [11] The Court has held that the probable cause determination must be done without unreasonable delay, and—absent emergency or exigent circumstances—within 48 hours of a person’s arrest. [12] 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 framework process ends.

Instructions. The policy team should discuss when in the flow of a criminal case the probable cause determination occurs in your jurisdiction. It may be before or after the delegated release decision. Probable cause determinations need to be made only for people who will experience “any significant pretrial restraint of liberty” and may not be needed for people who are released immediately at booking. [13] But for anyone who remains in custody, a probable cause determination is needed within 48 hours of arrest.

Your policy team may want to use the text as written in the Example Decision Framework or to include the laws, policies, procedures, and/or guidelines that judicial officers in your jurisdiction use to make the probable cause determination.

Decision 5

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 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 6.

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 at all (that is, release the person with no charges). Prosecutors often modify the arrest charges after they review the available evidence and the circumstances of the case. When prosecutors elect pre-charge diversion, they withhold filing charges and provide an alternative course of action (such as stipulating that a person remain crime-free for a specified time, participate in education classes, of perform community service or other types of victim restoration). Satisfactory completion of pre-charge diversion typically results in charges not being filed with the court. [14]

Instructions. Your policy team or a subcommittee should discuss the process flow of a criminal case in your jurisdiction and revise the Example Decision Framework to reflect the part of the process when this decision is made. The team may want to use the text as written in that document 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 6

Judicial officer decides to release the person or hold the person for a detention hearing.

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

• If yes to a detention hearing, go to Decision 7.
• If release, go to Decision 8.

Summary. At the first appearance hearing, a judicial officer decides whether to release someone or schedule a hearing to decide whether to intentionally detain the person based on a prediction of future public safety danger or flight. [15] A person may be detained in this manner only if the individual 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 release for all people except for those charged with capital offenses (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 state laws create these detention eligibility nets and limiting processes that provide a lawfully enacted process for intentional pretrial detention, judicial officers in those states may not purposefully detain a person beyond the established net, as that would nullify or negate the net itself. [16]

If someone cannot be intentionally detained, the person has 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. [17]

Thus, to make this decision—whether to release a person or hold a detention hearing—the judicial officer must first determine whether the individual’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. [18]

PSA results may help inform these types of decisions because all states’ pretrial detention laws are premised on either likelihood of flight or future danger to community safety—or both. The results may be relevant because the PSA assesses the pretrial likelihood of failing to appear in court, being arrested for any new criminal offense, and being arrested for a new violent criminal offense. 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 want to consider the PSA results, along with other relevant information.

If the judicial officer decides to hold a detention hearing, the hearing 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 ABA Standards of Pretrial Release. [19] 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 deliberate pretrial release or detention decision described may differ from current practices in your jurisdiction. Nevertheless, the framework includes this decision as described here because it is consistent with legal principles and evidence-based pretrial practices.

To complete the Decision Framework, the policy 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 the state law that governs the detention eligibility net and further limiting process. 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 policies and state pretrial laws for this purpose. [20] Your policy team may also want to seek the advice of national pretrial legal experts to help navigate challenging legal issues. [21] 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 law concerning pretrial release and detention and how that law can affect the jurisdiction’s pretrial decisions.

The team should edit the Example Decision Framework to specify the mechanisms available to the judicial officer for temporarily detaining a person until a detention hearing is held. Depending on state law or court rule, the mechanism may be a “no-bond hold”—in other words, an order that the individual be held until the detention hearing.

Decision 7

Judicial officer decides to release or detain the person.

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

• If detention, the framework process ends. [22]
• If release, go to Decision 8.

Summary. If the judicial officer determines that a person is eligible for detention under state law, a judicial officer must hold a hearing, typically within a few days, in order to lawfully detain the person pretrial. As noted, being eligible for detention does not mean the person will be detained. First, some states require a motion by prosecutors or other preconditions before proceeding to a detention hearing. [23] And virtually all states have a “further limiting process.” This means that not only must the person be charged with a detention-eligible offense (such as a capital offense), but also, in many states, the proof must be evident and the presumption of guilt must be great or a substantial likelihood of danger to community safety or flight must be found. [24] If these other conditions are not met, the judicial officer must order the person released. [25]

The detention hearing must provide the individual with due process rights. While the United States Supreme Court has never defined precisely what protections are required, the Court has cited with approval, in United States v. Salerno, [26] the federal process for detention, under which people are guaranteed representation by counsel and the right to present evidence; the government must prove the need for detention by clear and convincing evidence; the judicial officer must make written findings; and the person charged has the right to expedited appeal. 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 likelihood of danger to community safety or flight, Salerno helps by approving a clear and convincing standard for evidence and for determining that no less-restrictive alternative conditions suffice to provide reasonable assurance the person will not flee or pose a danger to others. The ABA Standards for Pretrial Release can also be used to fill any gaps in state law. [27]

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 likelihood of flight or danger to community safety 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 someone who is eligible for detention), the judicial officer may then set conditions of release, a process described in Decision 8.

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

The policy team should edit the Example Decision Framework to reflect the procedures your jurisdiction uses to hold pretrial detention hearings. Your Decision Framework 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 ABA standards.

PSA results may help inform this decision, because all jurisdictions base their pretrial detention decision on the likelihood of flight, the likelihood of danger to community safety, or both. The PSA assesses the pretrial likelihood of nonappearance in court, being arrested for any new criminal offense, and being arrested for a new violent criminal offense. Again, the PSA results should not override your state’s detention eligibility net and limiting process and should not be the only criteria used in determining whether to detain or release a person. Judicial discretion is paramount, and PSA results can give judicial officers additional information to help guide their decisions.

Decision 8

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 law-abiding behavior. 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. [28]

Summary. Once a judicial officer decides to release the person—usually at the first appearance hearing or a 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. [29] 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, 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 people who are released).

The PSA Release Conditions Matrix (see the Guide to the 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 policy team or a subcommittee develops its Release Conditions Matrix, include it in your Decision Framework. The Guide to the Release Conditions Matrix provides instructions.

Q: We almost never hold detention hearings. Our state doesn’t have a process for holding preventive detention hearings. Should we still include Decision 7 in our Decision Framework?

A: Of the many complex legal principles applicable to the pretrial release and detention decision, one of the most fundamentally sound is that a person 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 people—that is, the judicial officer does not put on the record an intention to detain someone but orders a secured financial condition in an amount that the person cannot meet and it results in their detention. [30] But through this use of secured financial conditions, jurisdictions end up detaining people 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 people are not given a meaningful hearing prior to being detained. But recent legislation in some states, as well as several court decisions in the past few years, could end this practice of using secured financial conditions as a method of detaining people. Thus, it is possible that your jurisdiction may be detaining people pretrial in ways that would not be considered lawful by those courts.

The Decision Framework builds on a foundation of the most up-to-date legal principles and evidence-based practices. A fundamental principle of the Decision Framework 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 likelihood of flight or danger to community safety. Intentional detention always requires a due process hearing and does not use secured financial conditions for the purpose of detaining a person.

Members of your policy team should become knowledgeable about current legal principles and evidence-based pretrial practices (if they aren’t already) to help understand how and to what extent Decision 7 applies 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 during which intentional pretrial detention may be ordered.

Q: Our jurisdiction’s judicial officers often detain people by setting a secured financial condition in amounts they probably cannot afford. The Decision Framework does not seem to take this practice into account. How should we customize our framework given that this is the current practice?

A: This situation tends to arise when a judicial officer is presented with people who are charged with serious crimes and/or assessed as having a high likelihood of flight or being arrested again but are not eligible for detention within a state’s detention eligibility net. The law is rapidly evolving in this area, but courts are increasingly holding that using financial conditions of release to detain people before trial—particularly when they do not fall within the detention eligibility net—runs counter to the constitutional principles of due process and equal protection. [31] Furthermore, reliance on financial conditions often results in unpredictable detention outcomes, given that judicial officers typically do not know what financial condition a person can afford. And much of the resulting detention is unnecessary: Research demonstrates not only that individuals on pretrial release succeed far more often than they fail (this is typically true even for people considered likeliest to fail) but also that it is highly unlikely that released people will act in the way community members most fear—for instance, committing a serious or violent crime once released or willfully fleeing to avoid prosecution. [32] Therefore, because detention through the use of secured financial conditions is widely viewed as inconsistent with best practices and, increasingly, as inconsistent with the Constitution, the practice is not included in the framework.

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

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 6 through 8. Do we still need to include the other decision points 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 framework is designed to help your team consider the entire pretrial system and identify areas where pretrial improvements can be made.