The pretrial program in the Office of the Court Administrator (OCA) was mandated by the 2017 Montana Legislature and is codified in Title 3 of the Montana Code Annotated.  A "validated pretrial risk assessment tool" is to be used by courts to "assign release conditions and determine placement options." MCA § 3-1-708.  The new law is consistent with the national recognition that there should be reformation of current bail systems.

When determining release or detention of a criminal defendant during an initial appearance, the law now states that courts "may use a validated pretrial risk assessment tool."  MCA § 46-9-109. 

The program, which is a pilot, is funded with one-time-only dollars. Continuation of the program beyond June 2019 is contingent on funding from the 2019 Montana Legislature. 

Validated Pretrial Risk Assessment Tool = Arnold Foundation Public Safety Assessment (PSA) 

The legal standards associated with setting conditions for release following arrest have always focused on public safety and the possibility that the defendant will not return to court as required.  MCA § 46-9-109(3).  The OCA has been fortunate enough to secure use of a pretrial risk assessment tool - the PSA - that incorporates those concepts and concerns. 

The Laura and John Arnold Foundation (LJAF) devised the PSA following the review of data from approximately 300 jurisdictions in the United States and in 1.5 million criminal cases.  

The PSA considers a defendant's:

• → age;
• → prior convictions;
• → prior violent convictions; and
• → failures to appear in court. 

The PSA does not consider a defendant's:

• ← race;
• ← gender;
• ← income;
• ← religion;
• ← education; or
• ← address.

Using the evidence-based, neutral information from these cases, researchers identified the nine factors that best predict whether a defendant will engage in new criminal activity, commit a new violent crime, or fail to appear in court if released before trial.  Use of these nine factors in a PSA allows a speedy, objective, relevant recommendation for a court.  The recommendation is stated in the PSA in a fashion that allows parties to give additional input during a court decision regarding release or detention.  But, most importantly, the recommendation in no way impedes a judge's discretion or authority to make that determination.  The PSA facilitates the overall goal of assisting all parts of the criminal justice system with the handling of newly-arrested defendants. 

GOALS:

• ➤ Maximize public safety by reserving detention for those offenders who pose the greatest risk to reoffend or fail to appear in court
• ➤ Maximize court appearance
• ➤ Maximize the appropriate use of release and detention by use of services designed to fulfill the two goals stated above

What does Montana's PSA Look Like? 

The PSA is currently being used for persons arrested and held in jail in the 5 pilot counties (Butte-Silver Bow, Lake, Lewis & Clark, Missoula, and Yellowstone). 

This shows the type of monitoring recommended in a PSA and the type of relevant pretrial services potentially ordered:

• Minimal Conditions = The defendant shall appear in court for all hearings and abide by all laws.
• Court Reminders = The defendant shall read or listen to all court date reminders and reply if requested.
• Criminal History Checks = The defendant's criminal history will be checked for new criminal charges at least once per month.
• Check-In = The defendant will check-in with a pretrial case manager at least once or twice per month. Check-ins may occur, at the discretion of the case manager, in-person or be done through telephone or video conference.
• No Contact Orders, Substance Testing, Electronic Monitoring, and Other Case-Specific Conditions = If one or more of these conditions are court ordered, the defendant will comply, and the case manager will monitor the defendant's compliance.