BILL ANALYSIS Ó
SB 210
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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
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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
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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.
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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:
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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;
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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).]
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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
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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
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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
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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,
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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."
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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
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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
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California District Attorneys Association
California Judges Association
California State Sheriffs' Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744