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PA Bulletin, Doc. No. 16-1122



[ 234 PA. CODE CH. 5 ]

Order Revising the Comment to Rule 523 of the Rules of Criminal Procedure; No. 475 Criminal Procedural Rules Doc.

[46 Pa.B. 3414]
[Saturday, July 2, 2016]


Per Curiam

And Now, this 15th day of June, 2016, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 45 Pa.B. 7288 (December 26, 2015), and in the Atlantic Reporter (Third Series Advance Sheets, Vol. 126), and a Final Report to be published with this Order:

It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the revision of the Comment to Pennsylvania Rule of Criminal Procedure 523 is approved in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective October 1, 2016.

Annex A



PART C(1). Release Procedures

Rule 523. Release Criteria.

*  *  *  *  *


 This rule clarifies present practice, and does not substantively alter the criteria utilized by the bail authority to determine the type of release on bail or the conditions of release reasonably necessary, in the bail authority's discretion, to ensure the defendant's appearance at subsequent proceedings and compliance with the conditions of the bail bond.

 When deciding whether to release a defendant on bail and what conditions of release to impose, the bail authority must consider all the criteria provided in this rule, rather than considering, for example, only the designation of the offense or the fact that the defendant is a nonresident. Nothing in this rule prohibits the use of a pretrial risk assessment tool as one of the means of evaluating the factors to be considered under paragraph (A). However, a risk assessment tool must not be the only means of reaching the bail determination.

 In addition to the release criteria set forth in this rule, in domestic violence cases under Section 2711 of the Crimes Code, 18 Pa.C.S. § 2711, the bail authority must also consider whether the defendant poses a threat of danger to the victim.

 When a defendant who has been released on bail and is awaiting trial is arrested on a second or subsequent charge, the bail authority may consider that factor in conjunction with other release criteria in setting bail for the new charge.

Official Note: Previous Rule 4002, formerly Rule 4003, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4002 and amended July 23, 1973, effective 60 days hence; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and not replaced. Present Rule 4002 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; amended September 3, 1999, effective immediately; renumbered Rule 523 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised June 15, 2016, effective October 1, 2016.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

Final Report explaining the June 15, 2016 Comment revisions regarding the use of risk assessment tools published with the Court's Order at 46 Pa.B. 3414 (July 2, 2016).


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 ''cash-based 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 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 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.

[Pa.B. Doc. No. 16-1122. Filed for public inspection July 1, 2016, 9:00 a.m.]


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.

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