BILL ANALYSIS                                                                                                                                                                                                    Ó

                                                                  SB 210
                                                                  Page  1

          Date of Hearing:   July 3, 2012
          Counsel:          Stella Choe

                                 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 

          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 

          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 

             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 

               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 

             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 

          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 

          "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 

          "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 

          "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 

             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.


          American Civil Liberties Union (Sponsor)
          California Public Defenders Association (Co-Sponsor)
          Drug Policy Alliance
          Friends Committee on Legislation of California

          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