In Re: Order Revising the Comment to Rule 523 of the Pennsylvania Rules of Criminal Procedure

FINAL REPORT1

Revision to the Comment to Pa.R.Crim.P. 523

RISK ASSESSMENT TOOLS

On June 15, 2016, effective October 1, 2016, upon the recommendation of the
Criminal Procedural Rules Committee, the Court approved the revision of the Comment
to Rule of Criminal Procedure 523 (Release Criteria) to recognize the use of risk
assessment tools as one factor permitted to be considered in bail determination.
Recently, representatives of the First Judicial District (FJD) in Philadelphia had
requested that the Committee consider clarifying that risk assessment tools may be
used as part of the determination when setting bail. The FJD is in the process of
developing a risk tool to assist Arraignment Court Magistrates and Judges in
determining whether defendants at the time of their arrest should be held in custody,
released under House Arrest/Electronic Monitoring, released under special conditions,
or released on their own recognizance.
This effort in the FJD is consistent with a national trend in moving from a “cash-
based release system,” which is believed to be more burdensome on lower income
defendants, to a “risk-based release system,” that attempts to assess the likely danger
of non-appearance or other misconduct. In particular, risk assessment tools are
intended to use quantifiable statistics in an attempt to determine the potential risk that
the defendant may pose and then use that as a basis for determining what conditions
should be placed on release. The ultimate goal is to try to add more objectivity to the
bail decision.
Simply put, a risk assessment tool is developed by studying cases in the past in
which the defendants have committed misconduct while on pretrial bail and determining
what factors, such as drug addiction, unemployment, or prior criminal history, are

1
The Committee's Final Reports should not be confused with the official Committee
Comments to the rules. Also note that the Supreme Court does not adopt the
Committee's Comments or the contents of the Committee's explanatory Final Reports.

Risk Assessment Tools Final Report: 06/15/2016
present. Usually, some type of point system is then developed from this data that will
be used to “score” a new defendant as a means of predicting whether the defendant will
commit misconduct while on bail.
The risk assessment tool being implemented in Philadelphia is a good example
of how such an analysis is developed. It is based on data of defendants in Philadelphia
from 2007-2014 who were arrested and released on pretrial status. The data was
analyzed to determine which defendants committed new crimes and the types of
characteristics these defendants who were arrested for new crimes possess. The types
of new crimes for which these defendants were arrested while on pretrial status were
also analyzed. Over 200,000 defendants' cases were studied. The factors studied
included a defendant's criminal history, age at time of first adult arrest, previous time in
jail, current and new charges, and length of previous time in jail.
Risk assessment tools are already in use in a number of jurisdictions, such as
Colorado and Kentucky. Even within Pennsylvania, Allegheny County has used a risk
assessment tool for bail determination since 2006. Use of risk assessment tools is also
encouraged in the ABA’s Standard on Pretrial Release 10-1.10(i) that urges each
jurisdiction, inter alia, to:

(i) develop and operate an accurate information management system to
support prompt identification, information collection and presentation, risk
assessment, release conditions selection, compliance monitoring and
detention review functions essential to an effective pretrial services
agency;…

The Committee also considered whether the rule should provide standards for
the type of risk assessment tools that would be permitted. Ultimately, the Committee
concluded that the validity of the individual risk tool’s methodology was a substantive
matter requiring factual determination on a case by case basis.
In light of these considerations, the Committee concluded that currently nothing
in the rules precludes the use of such a tool so long as it is not the exclusive means of
making the assessment regarding bail. However, the Committee believes that a
clarification on this point would be helpful. Therefore, the Comment to Rule 523 has

Risk Assessment Tools Final Report: 06/15/2016 -2-
been revised to state that the rule does not forbid the use of a risk assessment tool but
that the tool must not be the only means of reaching the bail decision.

Risk Assessment Tools Final Report: 06/15/2016 -3-