Pretrial Decision Making

The pretrial phase of the criminal justice process begins as soon as a law enforcement officer suspects an individual of violating the law. From that moment until the final disposition of a case, there are a series of important decision points. At each of these decision points, justice system officials such as law enforcement officers, prosecutors, and judicial officers will have to determine whether they believe the accused person should remain in their community or be detained in jail pending trial.

The pretrial process outlined below describes the major pretrial decisions that justice system professionals make about an accused adult—from the time of initial contact through the decision to release or detain the person. This outline also highlights where a pretrial assessment, such as the Public Safety Assessment (PSA), may help inform those decisions. The exact sequence of these decisions naturally differs from locality to locality, and specific jurisdictions may have different or additional pretrial decision points. For more description of each decision point, and of how the PSA may inform these decisions, see the Pretrial Decision Framework.

  • Decision

    01

    Initial contact by law enforcement officer.

    An officer decides whether to stop a person and make initial contact.

    • No contact.

    Contact is made.

  • Decision

    02

    Diversion, citation, or custodial arrest by law enforcement officer.

    An officer decides whether to take no action, refer the person to services (e.g., mental health, housing), issue a citation, or make a custodial arrest.

    • No action is taken.
    • The person is referred to services.
    • The person is issued a citation.

    A custodial arrest is made and the person is booked into jail.

  • Decision

    03

    Judicial officer determines probable cause.

    A judicial officer determines whether there was probable cause for the custodial arrest.

    • Probable cause is not found.

    Probable cause is found.

  • Decision

    04

    Prosecutor decides whether to file criminal charges.

    A prosecutor decides whether to file criminal charges (and if so, which charges) and/or refer the person to a diversion program.

    • Charges are not filed.
    • The person is referred to a diversion program.

    Criminal charges are filed.

  • Decision

    05

    First-appearance hearing: a judicial officer decides to release or hold for a detention hearing.

    At the first-appearance hearing, a judicial officer decides to release the person from custody or hold the person until a detention hearing.

    PSA/Pretrial Assessment

    The person is held for a detention hearing.

    Decision

    06

    Detention hearing: a judicial officer decides to release or detain.

    At the detention hearing, a judicial officer decides whether to detain or release the person prior to trial. The officer may use the PSA to help inform this decision.

    PSA/Pretrial Assessment

    The person is detained.

    The person is released.

    Judicial officer sets pretrial release conditions:

    A judicial officer sets the least restrictive conditions that will reasonably assure public safety and the person´s appearance in court. A pretrial assessment, such as the PSA, may inform the setting of release conditions (See the Guide to the Release Conditions Matrix)

    PSA/Pretrial Assessment

    The person is released.

A jurisdiction that aims to improve its pretrial system in ways that prioritize safety, reduce disparity based on wealth or race, and ensure that incarceration is reserved only for those who jeopardize public safety, must examine a broad set of improvements that impact each decision point; implementing a pretrial assessment alone is not the answer. In addition to implementing a pretrial assessment such as the PSA, some jurisdictions have, among other things, increased the use of citations/summons, expanded the role of defense counsel at first appearance hearings, established or expanded the use of diversion, developed supportive pretrial services, and decreased the use of secured money bail.

Learn more about the PSA Implementation Process.