Policies - Mapping Pretrial Risk

Many states require or recommend the use of a pretrial RAT in decision making.

Various governmental bodies can require or recommend the use of a RAT, or enshrine its use into laws or regulations.

These include state legislatures passing legislation, city governments passing local bills or writing rules, and the courts setting out administrative rules. The institution that requests or requires the use of a RAT is often distinct from the sheriff’s office, local jail, district attorney, or county court that may house pretrial services and actually administer the RAT.

Our research found 13 states where legislation or court order required the use of a pretrial RAT. Many of these states use a specific tool state-wide, either a common national tool or a state-created tool.

For example, Indiana implemented the Indiana Risk Assessment System-Pretrial Assessment Tool (IRAS-PAT),¹ which is adopted from the ORAS-PAT, after a pilot study of 11 counties² in 2016 and 2017. Indiana’s Supreme Court Rule 26 expands this pilot to the entire state as of January 1, 2020, requiring all jurisdictions to use IRAS-PAT for pretrial decision-making.³

Alaska uses the Alaska Scale,⁴ and while legislation requires the Department of Corrections to create a pretrial services program and approve a validated pretrial risk assessment for the program to use, the RAT is just one of 12 elements judges consider to determine pretrial release.⁵ Delaware uses the state-created Delaware Pretrial Assessment Tool,⁶ to determine risk in order to assign conditions of release.

Another 12 states have language in their statutes that recommends or allows the use of a RAT for pretrial decision making, and several counties within these states have opted to use a tool.

For instance, Kansas legislation allows courts to use a risk assessment for release on recognizance programs,⁸ and specifies that certain criteria, such as stability of employment and local family ties, must be included. Our research found at least three Kansas counties that opted to develop their own RATs.

Even when states do not require the use of pretrial RATs, many counties make administrative decisions to implement them on their own. In some states, courts have decided to use tools, or jurisdictions have partnered with tool developers to run pilots.

Pennsylvania, for example, does not require the use of RATs in the general pretrial context. However, our research found that as of November 2019, at least nine counties have adopted one. Since 2018, South Dakota has been piloting the PSA in two counties⁹ without any statewide requirement to do so. As of fall 2019 in Louisiana, our research found that Jefferson and Lafayette Parishes and New Orleans all use RATs, though there is no specific legal requirement or recommendation to do so.

In some jurisdictions, district attorney’s offices create policy or standards of practice around the use of risk assessment tools. In Dallas County, Texas, in 2019, the District Attorney adopted guidelines around bail that included the use of a risk assessment for determining conditions of pretrial release.¹⁰

However, pretrial RATs, on their own, do not automatically change anything about how a pretrial process operates in a particular place.

In some places, such as New Jersey, pretrial RATs have been introduced as part of a complete overhaul of the entire pretrial system¹¹ that includes efforts to release the majority of those arrested. New Jersey focuses heavily on pretrial release and uses the PSA, but the judicial, prosecutorial, and even police culture have changed towards massive release.

In other places, pretrial RATs are implemented without major cultural and policy changes, and can lead to no change in pretrial incarceration or can even be a part of an increase in pretrial incarceration. Risk assessments are not a quick fix to mass incarceration and pretrial systemic failures.