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Standards for pretrial release (ABA1, NAPSA2, CAPS3) recommend a careful limitation in the collection and use of information provided to the court in assisting the pretrial release decision to objective and reliable factors relevant to risk of flight or danger posed by the defendant and to release conditions responsive to these risks. This limitation is designed to provide due process to those accused of crime, securing defendants for trial, and protecting victims, witnesses and the community. As such, these factors should be empirically related to flight or crime during the pretrial period and not factors whose subjective interpretation result in inconsistent application of policy across jurisdictions and defendants. In the proposed Rules 4.10 and 4.40, this limited scope of information collection during the investigation process is not sufficiently addressed.
Rule 4.10(b)(3) and 4.10(c)(1) appear to be in direct contradiction as they relate to pre- arraignment release. Rule 4.10(b)(3) states that the Risk Score is not determinative, but is a relevant factor in assessing whether an individual can be released, the appropriate conditions of release and appropriate responses to violations and whether a person has overcome the presumption of detention outlined in sections 1320.13(i) or 1320.20(a). While this rule addresses release determination at arraignment, it fails to address the potential inconsistency across jurisdictions with which the risk level may preclude release prior to arraignment. This is due to the fact that each jurisdiction may choose different risk assessment tools, thus risk score levels could be different across jurisdictions even with the same risk factors considered. This means, in one county, a risk level may be sufficient to hold an individual in custody up until their arraignment court date, whereas in another county they may be eligible for pre- arraignment release. Rule 4.10(c)(1) states that the Pretrial Assessment Services and the court must not use the risk score as the sole basis to detain or release an individual.
Lastly, including interview-dependent factors in the investigation could lead to disparate outcomes on two fronts: first, insufficient language capacity for interviewing defendants could delay or impede assessment and release at the earliest point possible; second, consideration of socio-economic status as a proxy for race or ethnicity or as a barrier to release, only recapitulates the inequalities that SB10 is designed to eliminate. In San Francisco County, 43% of households speak a primary language other than English at home4, and of these households, 20% speak English less than “very well”. If interview-dependent risk factors are required for investigations and to submit assessments in a timely manner, each jurisdiction will need to require sufficient language capabilities in order to fairly and efficiently conduct assessments on all defendants eligible for release.
Similarly, consideration of risk factors like housing and employment, while important to the assessment of needs, could either directly or proximately relate to race, ethnicity, and/or socioeconomic status and could lead to disparate outcomes based on these population categories. These risk factors may only potentially be relevant under 4.40(c) and used to assist the Pretrial Assessment Services in crafting release conditions that support appearance at court and protect public safety, but carefully limited in that availability of services to support is not considered as a factor to deny release (Rule 4.40(c)(8)).