Risk Assessment Tools Final Report: 06/15/2016

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 “cashbased 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 -2-

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
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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.