BILL ANALYSIS Ó SB 291 Page 1 Date of Hearing: June 14, 2011 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 291 (Vargas) - As Amended: April 12, 2011 SUMMARY : Requires that when a defendant is extradited back to the State of California that judges issue bail in the amount of $100,000, in addition to any bail already issued for the underlying original offense. Specifically, this bill : 1)States that after a person has been brought back to this state by extradition proceedings, the person shall be committed to a county jail with bail set in the amount of $100,000 in addition to the amount of bail appearing on the underlying arrest warrant. 2)Specifies a 48-hour noticed bail hearing, excluding weekends and holidays, is required to deviate from this prescribed bail amount. 3)Clarifies that nothing in this section is intended to preclude the existing ex parte process for raising bail through an affidavit of a law enforcement officer in a felony or specified misdemeanor domestic violence case, as specified. EXISTING LAW : 1)States that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (United States Const., 8th Amend.) 2)Requires under the United States Constitution that the executive authority of one state to surrender to the executive authority a person charged with a crime in the state demanding surrender. (United States Const., Art. IV § Cl. 2.) 3)Provides that where a person charged with a crime must be returned to California for trial, the district attorney shall apply to the Governor for extradition. The application shall include the crime charged and the state and specific location SB 291 Page 2 where the person is located. İPenal Code Section 1554.2(a).] 4)Provides that where a person convicted of a crime in California has escaped, or violated the terms of bail, probation or parole, the district attorney or other specified official shall apply to the Governor for extradition. İPenal Code Section 1554.2(b).] 5)States that a person shall be released on bail, except for the following crimes when the facts are evident or the presumption great: a) Capital crimes; b) Felonies involving violence or sexual assault when the court finds by clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; and, c) Felonies where the court finds by clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. The court shall consider the seriousness of the offense, the defendant's criminal record and the probability of his or her return to court. The court, in its discretion, may release a person on his or her own recognizance. (Cal. Const., Art. I, Section 12.) 6)Provides that in making a bail decision the court shall consider public safety, the seriousness of the offense, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. Public safety shall be the primary consideration. İPenal Code Section 1275(a).] 7)Provides that the superior court in each county shall adopt a "uniform schedule of bail" for all felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. The judges shall consider the seriousness of the offense, including enhancements and aggravating factors. İPenal Code Section 1269b(c)-(e).] 8)Provides that any person arrested for, or charged with, an offense other than a capital offense may be released on his or SB 291 Page 3 her own recognizance ("OR"). (Penal Code Section 1270.) 9)Provides the following with respect to bail in specified offenses: a) Before any person arrested for a specified crime may be released on bail in an amount that is below or above the amount contained in the schedule of bail for the offense, or released on OR, a hearing must be held in open court. These crimes include: a serious or violent felony specified domestic violence offenses, dissuading a witness, or felony credible threats to inflict death or great bodily injury. İPenal Code Section 1270.1(a).] b) Notwithstanding these provisions, a judge or magistrate may increase, with respect to a bailable felony offense or a misdemeanor offense of violating a domestic violence order, bail to an amount exceeding that set forth in the bail schedule without a hearing, provided an oral or written declaration of facts justifying the increase is presented under penalty of perjury by a sworn peace officer, as specified. İPenal Code Section 1270.1(e).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "SB 291 will discourage the practice of ;jumping bail' and will save taxpayer dollars by dramatically reducing the number of times our counties pay thousands of dollars to chase down and extradite fugitives in other states. This will also provide district attorneys the opportunity to provide the judge with any additional information that should be considered before deviation from the proposed bail amount." 2)Bail : Bail permits a defendant to be released from actual custody into the constructive custody of a surety on a bond given to procure the defendant's release. The amount of bail must be specified in a court order or on the arrest warrant. (Penal Code Sections, 1268, 1269a, and 815a.) Before conviction, bail is a matter of right unless the offense is punishable by death, or a public safety exception is established. (Cal. Const. art I section 12.) SB 291 Page 4 Bail is initially set by the magistrate at a defendant's first court appearance. (Penal Code Section 1271.) A magistrate is authorized to set bail in any amount he or she deems sufficient to ensure the defendant's appearance. (Penal Code Sections 1268, 1269c, 1275, and 1289.) Counsel can request a superior court judge set a higher or lower bail amount. (Penal Code Sections 1269c, 1270.2, and 1289.) In addition, a peace officer may file a declaration stating that he or she does not believe that the amount of the bail set in the schedule is sufficient to assure the defendant's appearance. (Penal Code Section 1269c.) When defendants have been granted and released on bail, the trial court may order him or her placed in custody for a variety of reasons: (a) the defendant failed to appear and the court has forfeited his or her bail, (b) the court determines that the surety is dead or has left the state, (c) the defendant fails to meet an increased amount of bail, or (d) the defendant is held to answer following a preliminary hearing. 3)Bail Forfeiture : If a defendant fails to appear as ordered by the court and does not have a valid reason for the missed appearance, the court must declare bail forfeited. (Penal Code Section 1305). In addition the court may issue a bench warrant, in an amount determined by the judge to ensure the defendant's appearance, for the defendant's arrest. (Penal Code Section 978.5). 4)Extradition : Extradition between states is guaranteed by the United States Constitution, which has been codified into statute. İUS Const art IV, Section 2(2); 18 USC Section 3182]. Generally, a suspected fugitive is arrested on the basis of a demanding state's warrant charging the suspect with a crime. The prosecutor in the "asylum" state may then file a "fugitive complaint" against the suspect. When that occurs, the suspect is arraigned and held in custody or admitted to bail pending issuance of a governor's warrant. The fugitive may deny the allegations in the complaint or waive formal extradition at this point. Meanwhile, the prosecutor in the "demanding" state assembles the appropriate extradition papers, which are submitted to the governor of the demanding state. If the papers are approved as to form by the attorney general, the governor of the demanding state submits a requisition, or formal demand, accompanied by the supporting SB 291 Page 5 documents, to the governor of the asylum state. The governor of the asylum state after review by his or her office and the office of the state Attorney General then issues a warrant of extradition that commands the arrest and rendition of the fugitive. The fugitive is then arraigned on the governor's warrant and, on request, given the opportunity to challenge its validity by habeas corpus. If the challenge is unsuccessful, the appropriate agency in the demanding state is notified and sends its agents to return the fugitive to the demanding state. 5)Is this bill Unconstitutional Due to Separation of Powers ? The California Constitution requires that the judicial branch is responsible for setting bail. İCal. Const. art I, Section 28(a)c.] Judges from each county decide the bail schedule for their particular jurisdiction and what is appropriate by offense. Those bail schedules are seen as advisory, and judges may deviate from the amount prescribed based on the facts and circumstances of a particular case. This bill proposes an issue of first impression. May the Legislature set bail in a particular type of case? This role has been assigned to the judicial branch in the California Constitution. The action proposed by this bill may very well be unconstitutional. 6)Argument in Support : According to the San Diego District Attorney , "İu]nder existing law, criminal defendants are extradited back to California at considerable expense to the taxpayers ranging from $2,000 to $6,000 within the United States. Unfortunately, these defendants are able to bail out prior to even appearing before a magistrate. "SB 291 provides that a defendant who is extradited shall be committed to a county jail with bail set in the amount of $100,000 in addition to the amount of the bail appearing on the warrant. If also provides that a 40-hour noticed bail hearing, excluding weekends and holidays, would be required to deviate from this prescribed bail amount. "We are sponsoring this legislation because many times these defendants bail out before we can arraign them on the old charges. They become fugitives for a second time, leaving California again for refuge in another state jurisdiction. This requires California counties to extradite the defendant a second time. This places an unnecessary financial burden on SB 291 Page 6 already financially strapped counties. "SB 291 will ensure that when taxpayers' money is spend to send detectives and investigators to locate, rearrest and transport a defendant back to the jurisdiction of record that he/she actually appears in court to face the original charges and is not released before that court date. On the court date, the court will have discretion to lower bail; but the hearing will provide prosecutors the opportunity to explain to the court why bail should be kept higher that the bail amount prescribed for the underlying crime. "Moreover, since most extraditions involve serious/or violent felonies that put human life at risk, the public is endangered by the release of such defendant from custody prior to appearing before a magistrate." 7)Argument in Opposition : According to the California Attorneys for Criminal Justice (CACJ), "CACJ is concerned that the bill is inconsistent with the California Constitution's requirement that bail be set by the courts and is anchored in the totality of the circumstances of an individual case. Your bill also permits a "double hit" as courts already increase bail for a person who has a record of missing court appearances. The $100,000 proposed by SB 291 is an add-on which is applied even if the court has already adjusted bail upwards. In practical terms, your bill will have its greatest impact on the FIRST-TIME a person misses court, even if there is a justified reason. Multiple offenders will already have elevated bail amounts. "Additionally, your stated goal is to respond to a small percentage of cases where an accused leaves California multiple times in violation of his bail restrictions. However, your bill is not narrowly drafted to apply only to those multiple offenders. Instead, it would cover a situation of a one-time offender who has a single incident of missing court. The $100,000 is excessive in this one-time context. "CACJ is also concerned that the bill would equally apply to low-level offenses, even non-violent misdemeanors, whose bail amounts may be 1/10 of the $100,000. While it may be rare that misdemeanants are extradited, it is as frequent as the person who has to be extradited multiple times. In the misdemeanor context, the $100,000 amount is excessive and SB 291 Page 7 unjustified. Current bail schedules are required to be proportionate to the severity of the offense, which is underscored by the language of the California Constitution. Your bill overlooks this restriction by imposing a set amount regardless of the underlying offense. "CACJ is also concerned that SB 291 blurs the line between the judicial and legislative branches. Your legislation overrules the discretion of judges to set an appropriate bail amount. California Constitution Article I, Section 28(a)3. This would be the first time the Legislature sets a specific bail amount, a role that should be reserved for the judicial, not legislative branch. 8)Prior Legislation : SB 1049 (Harman), Statutes of 2010, Chapter 176, provides that a judge or magistrate may, with respect to a bailable felony offense or a misdemeanor offense of violating a domestic violence order, increase bail to an amount exceeding that set forth in the bail schedule without a hearing, providing a sworn peace officer declares under penalty of perjury facts and circumstances to support his or her belief that the scheduled bail is insufficient to ensure the defendant's appearance, or to ensure the protection of a victim of domestic violence, notwithstanding other provisions of law that prohibit a defendant, arrested for specified offenses, from being released on bail in an amount that is more or less that scheduled bail until a hearing is held in open court. REGISTERED SUPPORT / OPPOSITION : Support San Diego District Attorney's Office California District Attorneys Association Los Angeles County District Attorney's Office Los Angeles County Sheriff's Office Opposition California Attorneys for Criminal Justice California Public Defenders Association Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) SB 291 Page 8 319-3744