FAQs About the Decision Framework
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. 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. 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. 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.