BILL ANALYSIS Ó SB 210 Page 1 Date of Hearing: July 3, 2012 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 210 (Hancock) - As Amended: June 25, 2012 SUMMARY : Specifies that a court shall determine, with public safety as the primary consideration, whether a defendant charged with a jail felony is eligible for release on his or her own recognizance (OR). Specifically, this bill : 1)Authorizes the court to consider imposing any of the following conditions or any other reasonable condition that the court deems appropriate when granting OR release to ensure public safety and to ensure the defendant's appearance, as required: a) Mandatory reporting to the county, a designated law enforcement agency, county probation department, or other local governmental agency; b) Prohibiting contact with alleged victims or potential witnesses who may testify concerning the offense; c) Restricting locations, places of abode, and travel; d) Specifying curfew; e) Restricting consumption of alcohol; and f) Home detention, with or without electronic monitoring. 2)States if the court finds that the imposition of one or more of the specified conditions, or any other reasonable condition the court deems appropriate, would reasonably ensure the defendant's appearance, as required, and the defendant's release would not compromise public safety, the court may release the defendant on OR subject to those conditions. 3)Provides if the judge or magistrate makes a finding that OR release will compromise public safety or will not reasonably ensure the appearance of the defendant, as required, the court SB 210 Page 2 shall state on the record the reasons for that finding and shall then set bail as is reasonably necessary to ensure the appearance of the defendant. 4)States that a judge or magistrate may set bail in an amount less than what is specified in the county bail schedule, where he or she determines that the amount specified in the county bail schedule is higher than necessary to reasonably ensure the appearance of the defendant. In making this determination, the court may consider information included in a pretrial services report, if one is available. 5)Revises the factors that a judge or magistrate would be required to consider in setting, reducing or denying bail, and states that those factors must also be considered when making a determining conditions for pretrial release. 6)Lists the following factors that the judge or magistrate may consider when considering the history and characteristics of the defendant: a) The ties of the defendant to the community, including his or her employment, the duration of his or her residence, and the defendant's family attachments; b) The defendant's current educational or vocational program enrollment and participation; and c) The physical and mental condition of the defendant and the defendant's history related to dependence on alcohol or controlled substances, including past and current participation in substance abuse programs and counseling. 7)Provides that in considering the nature and circumstances of the offense charged, the judge or magistrate shall include consideration of the seriousness of the offense, the alleged injury to the victim, alleged threats to the victim or a witness to the crime charged, and the alleged use of a firearm or other deadly weapon in the commission of the crime charged. 8)Revises the criteria for "unusual circumstances" for the purposes of reducing bail below the amount established by the bail schedule approved for the county for a person charged with a serious felony or a violent felony, requiring that a finding of unusual circumstances not solely be based on the SB 210 Page 3 fact that the defendant has made all prior court appearances or has not committed any new offenses. 9)Authorizes a sheriff, county probation department, or other local government agency, with the concurrence of the board of supervisors, to employ an investigative staff for the purpose of recommending whether a defendant should be released on OR. 10)States whenever a court, a sheriff, county probation department, or other local government agency has employed an investigative staff, before a court may order a defendant released on OR in any case involving a violent felony, or a felony offense of driving under the influence causing bodily injury, a pretrial report shall be prepared recommending whether the defendant should be released on OR. 11)Provides that a pretrial investigation report may be prepared recommending whether the defendant should be released on OR in any case when a court, a sheriff, county probation department, or other local government agency has employed an investigative staff. 12)Requires the pretrial investigation report to include all of the results of an "evidence-based pretrial risk assessment" evaluating the defendant's probability of appearing at trial and potential risk to public safety. 13)Defines "evidence-based pretrial risk assessment" as the objective, standardized analysis of information about a pretrial defendant in a way that is consistent with and guided by the best available scientific evidence and professional knowledge that measures the risk of the defendant's probability of appearing at trial and the potential risk to public safety while pending case disposition. 14)States that in preparing the pretrial investigation report, the defendant shall not be interviewed about the facts and circumstances of the current offense, and any information that a defendant may provide shall not be included in the report. Any information provided by the defendant shall be used solely for the purposes of determining whether the defendant should be released on OR or in setting the conditions of the defendant's release or modifying a prior release order. The reports may be filed as part of the case record. SB 210 Page 4 15)States that the pretrial investigation reports are confidential and shall be sealed upon receipt by the court and made available only by court order, except that the reports shall be made available upon request of any of the following: a) Any local or state criminal justice agency; b) Any agency to which the defendant is referred for assessment or treatment; or c) Counsel for the defendant who is the subject of the report. 16)Authorizes supervision staff, employed by the court, sheriff, county probation department, or other local governmental agency, with the concurrence of the board of supervisors, for the purpose of monitoring the defendant's compliance with release conditions ordered by the court, to do any of the following: a) Notify the defendant of court appearance obligations; b) Require the defendant to report periodically by mail, telephone, or personal appearance to verify compliance with release conditions; c) Monitor and assist the defendant with complying with release conditions; d) Supervise a defendant placed on home detention, with or without electronic monitoring, as a condition of release; e) Promptly report violations of release conditions to the court; and f) Provide information to assist any law enforcement officer with detaining a defendant supervised pursuant to this section and for whom a bench warrant has been issued. 17)Makes Legislative findings and declarations relating to the need for pretrial custody reform and increasing the use of evidence-based practices in pretrial service programs. EXISTING LAW: SB 210 Page 5 1)Provides that any person arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance or "OR" by a court or magistrate who could release a defendant from custody upon the defendant giving bail. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out of county warrant arising out of a case involving only misdemeanors, shall be entitled to OR release unless the court makes a finding on the record that an OR release will compromise public safety or will not reasonably assure the appearance of the defendant as required. If the court makes one of those findings, the court shall then set bail and specify the conditions if any, whereunder the defendant shall be released. ĘPenal Code Section 1270(a).] 2)States that in setting, reducing, or denying bail, the court shall consider public safety, the seriousness of the offense, the previous criminal record of the defendant, and the probability of return to court. Public safety shall be the primary consideration in setting bail. In considering the seriousness of the charge, the court shall consider allegations concerning the following: injury to the victim, threats to the victim or a witness, use of a firearm or other deadly weapon and use or possession of controlled substances by the defendant. ĘPenal Code Section 1275(a).] 3)Provides before a court reduces bail below the amount established by the bail schedule approved for the county for a person charged with a serious felony or a violent felony, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, "unusual circumstances" does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses. ĘPenal Code Section 1275(c).] 4)States that a defendant shall not be released from custody under OR until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes: a) The defendant's promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending; SB 210 Page 6 b) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate; c) The defendant's promise not to depart this state without leave of the court; d) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California; and e) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release. (Penal Code Section 1318.) 5)Authorizes a court, with the concurrence of the board of supervisors, to employ an investigative staff to recommend whether defendants should be released on OR. ĘPenal Code Section 1318.1(a).] 6)Requires a pretrial investigation report to be prepared, whenever a court employs an investigative staff to recommend OR release for a defendant charged with a violent felony or a felony violation of driving under the influence with injury. The report shall include all of the following: a) Written verification of any outstanding warrants against the defendant; b) Written verification of any prior incidents where the defendant has failed to make a court appearance; c) Written verification of the criminal record of the defendant; and d) Written verification of the residence of the defendant during the past year. ĘPenal Code Section 1318.1(b).] 7)Provides that no person arrested for a violent felony may be released on OR until a hearing is held in open court before the magistrate or judge, and until the prosecuting attorney is given notice and a reasonable opportunity to be heard on the matter. ĘPenal Code Section 1319(a).] SB 210 Page 7 8)Prohibits a defendant charged with a violent felony from being released on OR where it appears, by clear and convincing evidence, that he or she previously has been charged with a felony offense and has willfully and without excuse from the court failed to appear in court as required while that charge was pending. ĘPenal Code Section 1319(b).] 9)States that OR release of the following defendants shall not be granted without a court hearing: a) Any person who is currently on felony probation or felony parole; and b) Any person who has failed to appear in court as ordered, resulting in a warrant being issued, three or more times over the three years preceding the current arrest, except for infractions arising from violations of the Vehicle Code, and who is arrested for any of the following offenses: i) Any felony offense; ii) Any gang offense; iii) Assaultive conduct; iv) Theft; v) Burglary; or vi) Any offense where the defendant is alleged to have been armed with or to have personally used a firearm. (Penal Code Section 1319.5.) 10)Provides that any person who willfully fails to appear, as specified, after being released on OR, is guilty of a crime as follows: a) Where the charge or conviction is for a misdemeanor offense, the defendant is guilty of a misdemeanor. b) Where the charge or conviction is for a felony offense, the defendant is guilty of a felony, punishable by a fine of up to $5,000, by imprisonment of 16 months, two years or three years, or a county jail term of up to one year, or by SB 210 Page 8 both that fine and imprisonment. (Penal Code Section 1320.) 11)States that any person who is charged with or convicted of a felony offense, who is released from custody on bail, and who willfully fails to appear as required, is guilty of felony, punishable by a fine not exceeding $10,000 or by imprisonment of 16 months, two years or three years, or a county jail term of up to one year, or by both the fine and imprisonment. (Penal Code Section 1320.5.) FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "Seventy-one (71) percent of county jail detainees in California have not been sentenced, but are awaiting trial. Jail overcrowding is largely due to the increased numbers of pre-trial detainees caused by repeated increases to the bail schedules, the court's lack of information as to the defendant's public safety risk, and the limited authority of the county sheriffs and other agencies to resolve these issues, particularly when it comes to pre-trial defendants. "High rates of pretrial detention are a threat both to public safety and civil liberties. People with financial resources are able to get out of jail and return to their jobs, families, and communities. People who are unable to pay for bail or raise the necessary collateral, however, must stay in jail awaiting a trial date that could be months away. Or, they may more readily decide to accept a plea bargain as a means of getting out of jail. These results have nothing to do with public safety. They have everything to do with wealth and poverty. "Pretrial detention is expensive; costs exceed $100 per inmate day in urban jurisdictions. A cost-benefit analysis of pretrial detention found that total costs are lowest when 70 to 90 percent of those arrested are released. If own recognizance (OR) release is not sufficient to assure appearance or public safety, pretrial supervision is a cheap alternative to detention-most estimates are in the range of $2.50 per day, a small fraction of the cost of a jail bed in any jurisdiction. (However, these estimates may be deceptively SB 210 Page 9 low because of supervision and monitoring fees imposed on released defendants.) "The American Bar Association and the National Association of Pretrial Services Agencies periodically publish a set of standards governing pretrial release and pretrial services. Their recommendations include: quantitative risk assessments, pretrial notification and follow up after failure to appear, limited conditions, a wide range of possible sanctions for failure to adhere to conditions, and mental health screening. There are limited multi-jurisdictional assessments of pretrial programs, but a 2007 statistical analysis found that these measures have a positive impact on failure to appear and re-arrest rates. "SB 210 will provide an effective and necessary tool in managing jail overcrowding by providing a framework for granting OR release, coupled with pre-trial services, and conditions, for defendants charged with nonviolent, nonserious, and nonsexual felony offenses for which a person may be sentenced to county jail. "Current law does not expressly authorize any entity other than the court to conduct investigations to determine whether the defendant is appropriate for OR release; in practice, this means that the court rarely receives information regarding the defendant's appropriateness for pretrial release in any case not involving a violent felony. Accordingly, SB 210 specifies that a designated law enforcement agency or county probation may monitor a defendant released on OR. "SB 210 will have enormous impact in the reduction of jail overcrowding. Reports from local jurisdictions support these findings. Santa Cruz County and Napa County have implemented pretrial services programs and have achieved successful outcomes. Santa Cruz County reduced their average daily population in county jail by 25 percent, and in 2011, Santa Cruz County's pretrial detention rate was 56 percent, far below the state-wide average. Napa County reduced their pretrial population from 80 percent in 2000 to 65 percent after a decade of implementing pretrial services program. Eleven other states have implemented similar legislation to provide pretrial alternatives to detention. Kent County, Michigan, had a pretrial population of 60 percent, which fell to 31 percent after implementation of a pretrial services SB 210 Page 10 program in 2003. The failure to appear rate of those under pretrial supervision in 2009 was a very low 6 percent. Maryland's Pretrial Release Services Program reports very low re-arrest (4 percent) and failure to appear (6 percent) rates for those under supervision. Florida county pretrial services programs supervised 80,345 individuals in 2009, 5.5 percent of whom were issued a warrant for failure to appear and 5.8 percent were arrested for any offense while under supervision. Thus, jurisdictions can increase access to pretrial release without compromising public safety." 2)Background : According to the background information provided by the author, pretrial reform has been implemented successfully in several counties within California, as well as in other states. For example, "Santa Cruz County's Main Jail was over capacity soon after opening its doors in 1981. By 2004, overcrowding reached such proportions that a Grand Jury Report deemed the jail dangerous for inmates and staff alike. After analyzing its jail population, Santa Cruz County found that many low-risk pretrial defendants were likely unnecessarily occupying jail beds. In 2005, the probation department began working with the sheriff's detention staff to introduce a validated risk assessment tool to identify whether pretrial defendants posed significant risks to the community. They recommended that the courts release low-risk defendants on their own recognizance, without requiring bail. Probation staff also developed a supervision program and reporting rules for those released pretrial. After two years, Santa Cruz found that fully 92 percent of supervised pretrial participants did not re-offend, and 89 percent made all of their court appearances. Ninety jail beds a day were saved (a 25 percent reduction in average daily population), thus amounting to significant cost savings to the county. In 2011, Santa Cruz's pretrial detention rate was 56 percent, far below the state-wide average." On a national level, examples of successful pretrial reform can be seen in Camden, New Jersey and Washington, D.C.: "The Camden Correctional Facility in Camden, New Jersey endured chronic jail overcrowding for more than 20 years. By 2004, it was operating at 142 percent of its designed capacity. The severe overcrowding problem prompted a class action lawsuit, SB 210 Page 11 which ultimately resulted in the implementation of a jail reduction initiative. After analyzing its jail population, Camden found that adopting validated risk assessment tools and alternatives to incarceration for low-risk pretrial defendants could significantly ease the burden on its system. Camden made a number of changes to its management of the jail system, the pretrial programs chief among them. As a result, the average daily jail population fell by 21 percent over one year, amounting to a cost avoidance of over $9 million annually." "As early as 1963, commentators criticized the discriminatory nature of the bail system in Washington, D.C. and its failure to reduce public safety risks. Over the next four decades, the D.C. Pretrial Services Agency instituted a comprehensive pretrial policy-validated risk assessments reported to courts in preparation for bail decisions, programming for those released pending trial, and effective pretrial supervision. As a result, by 2008, 80 percent of all defendants were released without a money bond (as opposed to the previous rate of 80 percent being held in jail, as is the case in many California counties). Fifteen percent are typically held by the court without bail. Only five percent have financial bail. None are released on commercial surety bail (bail bonds). Furthermore, the high non-financial release rate has been accomplished without sacrificing the safety of the public or the appearance of defendants in court. Agency data show that 88 percent of released defendants make all court appearances, and 88 percent complete the pretrial release period without any new arrests." 3)Arguments in Support : a) According to the Friends Committee on Legislation of California , "Currently, more than 70 percent of California's local jail populations are composed of pre-trial detainees who typically are held in custody because they cannot afford to post bail. In particular, low income defendants charged with low level offenses are routinely detained until trial regardless of their risk to public safety and regardless of their risk of not appearing for trial. SB 210 will provide for more equitable outcomes and improve public safety by requiring courts to assess and weigh a defendant's risk to public safety in addition to weighing a defendant's risk of failure to appear." SB 210 Page 12 b) According to the California Public Defenders Association , "While existing law currently permits OR release for non-capital offenses, the reality is that OR releases are not commonly ordered for individuals facing felony charges. Over 70 percent of Californians housed in county jails are comprised of people with pending charges as opposed to sentenced offenders at great cost to the taxpayers of California. Daily jail costs hover at $80-100 per day. Indigent individuals are disproportionately affected and remain in custody at higher rates than those who can afford to post bail or bond. Yet the financial status of a person and not public safety, determines who is able to make bail or post bond. "California's current bail system fails to effectively assess and manage risk among pretrial populations and instead falsely assumes that a person who can afford bail will more likely appear in court and will not commit a new crime while out on bail. Sheriffs are not currently permitted to issue citations to release those charged with felony offenses, regardless of how minor the felony and regardless of a person's prior record. . . . SB 210 supports the implementation of public safety realignment by providing counties and courts the ability to grant OR release not based solely on socioeconomic status of the individual charged, but based on an individual assessment of risk to public safety." 4)Arguments in Opposition : a) According to the American Bail Coalition , "In our view, there is scant evidence that such pretrial programs actually work; that is, that releasing defendants on their own recognizance will insure that they show up for their trials. On the contrary, there is significant evidence that pretrial release programs are a failure and that releasing defendants on their own recognizance should be limited to very minor offenses. A recent study conducted in California, shows that inmates released on their own recognizance in California are 60% more likely to fail to appear than are defendants released on bail. (Michael Block, Ph.D., The Effectiveness and Cost of Secured and Unsecured Pretrial Release in California's Large Urban Communities, University of Arizona (2005).) According to SB 210 Page 13 the study, these failures to appear cost California approximately $10 million per year. We can presume that, if we greatly increase the number of inmates released on their own recognizance, the cost to taxpayers would skyrocket." b) According to the California District Attorneys Association , "Defendants charged with PC 1170(h) (realignment) felonies, are already eligible for OR releases. Inasmuch as the bill simply provides express authority for a court to impose conditions of an OR release, these provisions are unnecessary. Additionally, we remain concerned about the bill's language that permits a court to ultimately set bail at a level that is lower than what the county bail schedule provides. Such a decision is inappropriate given the risk to public safety. If the concern is that the current bail schedule effectively precludes some cohort of defendants from being able to post bail, then a more appropriate response is to pursue changes to the bail schedule." 5)Related Legislation : a) SB 1180 (Hancock) was substantially similar to this bill. SB 1180 died on the Senate Inactive File. b) AB 1913 (Skinner) allows a person on post-release community supervision who has a revocation petition filed against him or her to file an application for bail with the superior court. AB 1913 is pending hearing by the Senate Committee on Public Safety. REGISTERED SUPPORT / OPPOSITION : Support American Civil Liberties Union (Sponsor) California Public Defenders Association (Co-Sponsor) Drug Policy Alliance Friends Committee on Legislation of California Opposition Aladdin Bail Bonds American Bail Coalition SB 210 Page 14 California District Attorneys Association California Judges Association California State Sheriffs' Association Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744