BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2011-2012 Regular Session B 9 8 9 SB 989 (Vargas) As Introduced February 1, 2012 Hearing date: April 24, 2012 Penal Code JM:mc EXONERATION OF BAIL: FUGITIVES FOUND IN FOREIGN COUNTRIES HISTORY Source: Aladdin Bail Bonds Prior Legislation: AB 2854 (Dymally) - 2006, Vetoed SB 1245 (Polanco) - Ch. 434, Stats. 1995 AB 734 (Johnson) - Ch. 524, Stats. 1993 Support: California Bail Agents Association; Golden State Bail Agents Association Opposition:Los Angeles County District Attorney; California District Attorneys Association KEY ISSUES SHOULD BAIL BE EXONERATED WHERE A FUGITIVE IS TEMPORARILY DETAINED BY A BAIL AGENT IN THE PRESENCE OF A LAW ENFORCEMENT OFFICIAL IN A FOREIGN JURISDICTION AND THE PROSECUTOR OR UNITED (More) SB 989 (Vargas) PageB STATES ATTORNEY FAILS TO MAKE A DECISION CONCERNING EXTRADITION WITHIN A REASONABLE TIME? (CONTINUED) SHOULD THE 180-DAY PERIOD FOR RETURNING A DEFENDANT TO CUSTODY BEFORE BAIL IS FORFEITED BE TOLLED WHILE THE PROSECUTOR DETERMINES WHETHER OR NOT TO EXTRADITE A FUGITIVE WHO HAS BEEN DETAINED BY THE BAIL AGENT IN THE PRESENCE OF LAW ENFORCEMENT IN A FOREIGN JURISDICTION? SHOULD BAIL BE EXONERATED IN ANY CASE IN WHICH THE UNITED STATES DEPORTS A BAILED DEFENDANT? PURPOSE The purposes of this bill are to 1) provide that where a fugitive is detained by the bail agent in the presence of a law enforcement official in a foreign jurisdiction, as confirmed by an affidavit from the law enforcement officer, and the county district attorney or United States Attorney does not make a decision concerning extradition within a reasonable period of time, bail forfeiture shall be vacated and the bond exonerated; 2) provide that the 180-day period for returning a fugitive to custody to avoid bail forfeiture be tolled while the prosecutor or United States Attorney determines whether or not to seek extradition of a fugitive detained by the bail agent in a foreign country, as specified; and 3) provide that a bail bond forfeiture shall be vacated and the bond exonerated in any case in which the United States deports the bailed defendant. Existing law provides for the licensing of bail agents by the Insurance Commissioner. (Ins. Code § 1800 et seq.) Existing law provides that if an on-bail defendant fails to appear for any scheduled court appearance, bail is forfeited, as (More) SB 989 (Vargas) PageC specified, unless the defendant is returned to court within 180 days. (Pen. Code § 1305, subds. (a) and (b).) Existing law requires the court to exonerate bail where a defendant surrenders or is recaptured within 180 days of forfeiture. (Pen. Code § 1305, subd. (c).) Existing law provides that a motion to extend the 180-day period for returning a defendant to court before execution of bail forfeiture may be heard within 30 days of the expiration of the 180-day period. (Pen. Code § 1305, subd. (i).) Existing law provides that a surety insurer, bail agent, surety or depositor may file a motion for an order extending the 180-day forfeiture period. (Pen. Code § 1305.4.) Existing law provides that in the case of a temporary disability of the defendant to appear within the 180-day forfeiture exoneration period, the court shall order the tolling (suspension of the running) of the 180-day period for a reasonable time under the following circumstances: 1) The defendant is either temporarily disabled by illness or insanity, or the defendant has been detained by military or civil authorities. 2) The defendant is unable to appear in court. 3) The defendant's absence is without the "connivance" of the bail agent or insurer. Existing law provides that where a fugitive is in custody beyond the jurisdiction of the court that ordered forfeiture of the bond, the forfeiture shall be vacated and the bond exonerated where the prosecuting agency, after being informed of the location of the fugitive, elects not to seek extradition. (Pen. Code § 1305, subd. (f).) Existing law provides that where a bail agent temporarily detains a fugitive in the presence of a law enforcement officer in a foreign jurisdiction, and the law enforcement officer confirms the identity of the fugitive in an affidavit, bond shall be exonerated if the prosecuting agency elects not to pursue extradition. (Pen. Code § 1305, subd. (g).) (More) SB 989 (Vargas) PageD Existing provisions of the United States Constitution require 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.) Existing treaties establish the bases and processes for extradition of fugitives to and from the United States. An extradited defendant can only be tried for the offense underlying extradition. (4 Witkin, Crim. Law, Juris. and Venue, §27.) Existing law provides that the district attorney shall apply to the Governor for extradition of a fugitive from a jurisdiction outside California. The application shall include the crime charged and the specific location of the fugitive. (Pen. Code § 1554.2, subd. (a).) This bill provides that where a fugitive has been temporarily detained by the bail agent in the presence of a law enforcement officer in a jurisdiction outside California,<1> bond shall be exonerated if the prosecuting agency or the United States Attorney does not make a decision concerning extradition "within a reasonable period of time." This bill provides that where a fugitive has been detained by the bail agent in the presence of a law enforcement officer in a foreign jurisdiction, the court shall toll the running of the 180-day period for vacating bail forfeiture. The 180-period shall be tolled pending the decision of the prosecutor or United States Attorney concerning an extradition decision. This bill provides that if the prosecutor "proceeds with extradition" the court shall toll running of the 180-day period for vacating forfeiture "until? the bond is exonerated or the --------------------------- <1> While the bill specifically refers to fugitives detained in another "jurisdiction," the bill will typically only apply where a fugitive is located in another country, as states in the United States are constitutionally required to cooperate concerning extradition. (U.S. Const., Article IV, §2, Cl. 2.) (More) SB 989 (Vargas) PageE extradition process is completed." This bill provides that the court shall vacate forfeiture of a bail bond in any case in which the United States has deported the bailed defendant to a foreign country. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of limitations for felonies or constricting statutory parole standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern (More) SB 989 (Vargas) PageF District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California's 33 prisons must be no more than the following: 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and 137.5 percent by June 27, 2013. This bill does not aggravate the prison overcrowding crisis described above under ROCA. (More) SB 989 (Vargas) PageG COMMENTS 1. Need for This Bill According to the author: Current law provides a 180-day period after the defendant fails to appear within which the surety can recover the fugitive and exonerates the bail bond. If the agent locates a fugitive and presents adequate proof that the defendant has been detained, bail may be exonerated if the prosecutor elects not to extradite the defendant. If the prosecutor chooses to extradite the fugitive, bail is exonerated upon the fugitive's return to California custody. A problem arises where the prosecutor declines to make a decision about extradition in a timely fashion. Often, a good portion of the 180-day period is spent locating the fugitive. Once the fugitive is located and the prosecutor is notified, the prosecutor sometimes fails to decide about extradition with the 180-period. Because bail agents runt the risk of forfeiture, current law creates a disincentive to track down a fugitive near the end of the 180-day period, as there is no practical way for the agent to exonerate the bond prior to the deadline. As a result, agents are reluctant to expend the resources necessary to locate fugitives. 2. The Abbreviated Sum and Substance of Bail Bail is a contract for release of a person from jail upon a promise to appear at future court hearings. The promise is backed by a bond issued through a bail agent. A bailed defendant is said to be in the constructive custody of the bail agent. (Taylor v. Taintor (1862) (16 Wall.) 83 U.S. 366, 372.) "In pre-Norman England, a bondsman ? could suffer the same penalty as the fugitive. This ? led to the allowance of rather extreme measures for capture İof the fugitive]." (Ouzts v. (More) SB 989 (Vargas) PageH Maryland National Ins. Co. (1974) 505 F.2d 547, 550.) These measures include allowing a bail agent to arrest a fugitive in a state other than where bail was issued. (Ibid.) 3. California Fugitives in Foreign Countries and the Seneca Decision A fugitive defendant who is in a foreign country or sister state must be returned to court in California through extradition. Under existing law (Pen. Code § 1305, subds. (f) and (g)), where a bail fugitive is found in a foreign country or sister state, a bail agent or insurer is entitled to have the forfeiture vacated in two circumstances: 1) The prosecutor elects not to pursue extradition after being informed of the location of the defendant. 2) The bail agent temporarily detains the defendant in the presence of a law enforcement official in the foreign jurisdiction, the official confirms the identity of the defendant, and the prosecutor elects not to seek extradition. People v. Seneca (2010) 189 Cal.App.4th 1075, concerned a fugitive named Dong Suk Kim for whom Seneca Insurance had issued a bail bond in Orange County. Kim fled to Korea before arraignment on September 9, 2009. The bail agent went to Korea and brought Kim to the police where Kim's identity was documented on January 3, 2009. On April 2, 2009 the trial court extended the 180-day period for avoiding forfeiture until October 10, 2009. On October 1, 2009, Seneca moved to vacate the forfeiture because the prosecution did not follow-through on a pledge to extradite Kim. However, as the period for vacating bail expired before the extradition process had begun, the court ordered the bond to be forfeited. (Id, at pp. 1078-1079.) The appellate court upheld the trial court, noting that the governing statute does not authorize tolling of the 180-day period where the defendant has fled to another country. Bail is exonerated in extradition matters only where the prosecutor elects not to extradite the defendant after the defendant is held in custody or temporarily detained in a foreign country. In Seneca, the district attorney had not affirmatively decided against extraditing Kim. Rather, the district attorney intended (More) SB 989 (Vargas) PageI to extradite Kim, but had not done so before the time for vacating the forfeiture had expired. Essentially, where the prosecution has not made a decision whether or not to seek extradition and the 180-day period before forfeiture runs, the bond must be forfeited. (Ibid.) The appellate court stated that the law generally disfavors forfeiture, including bail forfeiture. The court noted that requiring forfeiture of bail in cases where a defendant could only be returned to court through extradition created a financial disincentive for bail agents to pursue fugitives in foreign countries. The court also noted that a prosecutor could effectively bring about a bail forfeiture by, in bad faith, promising to "elect" to extradite a defendant and then delaying efforts beyond the exoneration period. The court found that the Orange County District Attorney had not acted in bad faith and that the law requiring forfeiture was clear in any event. (Id, at 1082-1083.) This bill would toll the running of the 180-day period before forfeiture during the time that the prosecutor determines whether or not to extradite the defendant. The bill then provides that if the prosecuting agency "proceeds with extradition" the court shall toll the 180-day (non-forfeiture) period "until such time as the bond is exonerated or the extradition process is completed." The bill also directs the court to vacate forfeiture and exonerate the bond if the prosecutor fails to make such a determination within a reasonable period of time. 4. Issues of What it Means to "Proceed with Extradition" and What Constitutes Completion of the Extradition Process In cases arising under this bill, the fugitive will not actually be in the custody of the foreign law enforcement agency, but only temporarily detained by the bail agent. However, in order for the prosecuting agency to extradite the fugitive, the fugitive must be held in custody by the foreign jurisdiction; the jurisdiction must have an extradition treaty with the U. S. and the foreign country must agree to actually extradite the (More) SB 989 (Vargas) PageJ fugitive back to the United States. The procedures and decisions concerning extradition of a fugitive from another country are largely beyond the control of the county district attorney. Treaties between the United States and individual foreign countries control foreign extraditions. The Governor and the U.S. Secretary of State must process an extradition request, and foreign law enforcement and judicial officials must cooperate in the extradition. The bill does not define what it means for a prosecutor to "proceed with extradition." The bill does not define when extradition is "completed." Without certainty as to these terms, courts will have difficulty applying the law. Would the process begin if and when the prosecutor requests foreign law enforcement officers to arrest the fugitive? Would it begin after the fugitive is taken into custody and the formal extradition processes are begun? Is extradition completed when the fugitive is returned to the United States? Or is the extradition process completed when the prosecuting agency determines that the fugitive cannot be extradited? As the bill is now drafted, these issues would be determined through extensive litigation. Nevertheless, the following scenarios illustrate that under this bill bail will not likely be subject to forfeiture in any case in which the bail agent detains a fugitive in the presence of a foreign law enforcement official. ----------------------------------------------------------------- |Prosecutor elects not to |Bail is exonerated | |extradite | | |--------------------------------+--------------------------------| |Prosecutor is deciding whether |Forfeiture is stayed (tolling | |or not to extradite |of 180-day period) and bail | | |exonerated if the prosecutor | | |does not act within reasonable | | |time. | |--------------------------------+--------------------------------| |Prosecutor proceeds with |Forfeiture is stayed (180-day | (More) SB 989 (Vargas) PageK |extradition and defendant is |period tolled) until the | |returned to court. |extradition process is | | |completed. Bail exonerated | | |when the defendant is returned | | |to court. | |--------------------------------+--------------------------------| |Prosecutor attempts to |Forfeiture is stayed | |extradite - proceeds with |indefinitely (180-day period | |extradition - but defendant is |tolled). Issues of forfeiture | |not returned to court. |and exoneration not resolved. | ----------------------------------------------------------------- DOES THIS BILL ADEQUATELY DEFINE WHEN A PROSECUTOR HAS "PROCEEDİED] WITH EXTRADITION" AND WHEN THE PROCESS OF EXTRADITION HAS BEEN COMPLETED? UNDER THE TERMS OF THIS BILL, WHERE A BAIL AGENT DETAINS A FUGITIVE IN THE PRESENCE OF A FOREIGN LAW ENFORCEMENT OFFICIAL, WOULD BAIL EVER BE FORFEITED? 5. Agreement on Amendments among the Author and Interested Parties: Cases where Extradition is Reasonably Probable; Good Cause to not Extradite; Notice to Prosecutor; Additional 180-Day Stays of Forfeiture upon Agreement and Others noted Below In 2006, AB 2854 (Dymally) presented issues similar to those in this bill. (AB 2854 was vetoed.) In discussions on AB 2854, the Los Angeles County District Attorney suggested that tolling of bail forfeiture pending extradition should be allowed only where extradition is a reasonable probability. The District Attorney also argued in connection with AB 2854 that bail should not be exonerated where extradition is feasible, but where the prosecutor has good cause not to extradite, such as where the defendant is wanted for a relatively minor crime and extradition would be costly and time-consuming. Those issues remain with this bill. The Los Angeles District Attorney has also noted about AB 2854 (More) SB 989 (Vargas) PageL and this bill that a prosecutor would not receive notice of a motion for exoneration of bail in a case involving extradition of a bail fugitive. As such, the prosecutor might not have an opportunity to explain to the court why extradition was not pursued or to argue about whether the prosecutor's actions concerning extradition were reasonable. Such issues could be decided solely on the arguments of the bail agent. The District Attorney believes that notice to the prosecutor should be required in any motion concerning tolling of forfeiture or exoneration of bail in a case in which the defendant must be extradited back to California. The District Attorney has also argued that in many cases the bail agent provided bail to a defendant who may have been likely to flee the country. Because extradition is costly, and because the bail agent assumed the risk that a bailed defendant could leave the country, the District Attorney believes that the bail agent should bear the cost of extradition in order to avoid forfeiture of bail, particularly where the bail should have appreciated the risk of the defendant's flight. In recent discussions among the author's staff, the sponsor and the Los Angeles District Attorney it appears that many of the issues discussed in this comment have been resolved. It is the understanding of Committee staff that the following amendments will be offered by the author at the hearing on this bill: Proposed Amendment No. 1 Notice must be given to the prosecutor on every motion concerning the bail of a fugitive who has fled to another jurisdiction. Proposed Amendment No. 2 In cases where a fugitive defendant has fled to another jurisdiction and forfeiture or exoneration of bail depends on whether the prosecutor extradites, additional 180-day stay of forfeiture could be granted by the court upon a proper showing, (More) SB 989 (Vargas) PageM including reasonable probability of extradition. Proposed Amendment No. 3 Exoneration of bail would be allowed where the prosecutor elects not to extradite a fugitive only in a case where extradition is reasonably probable. Extradition would be excused, and bail not exonerated, where there is good cause not to extradite. Proposed Amendment No. 4 Where the bail agent obtains an additional 180-day stay of forfeiture in an extradition matter, the agent would bear the reasonable costs of extradition. Proposed Amendment No. 5 The provision in the bill allowing exoneration of bail based on a decision of the United States Attorney not to extradite will be stricken from the bill. Proposed Amendment No. 6 The provision requiring exoneration of bail where the bailed defendant is deported will be stricken from the bill. SHOULD THESE PROPOSED AMENDMENTS BE ADOPTED? 6. Limiting or Prohibiting Forfeiture of Bail Issued in a California Prosecution Because of Decisions of the U.S. Attorney The bill provides that bail issued in a California prosecution shall not be forfeited if either the county prosecutor or the U. S. Attorney elects not to extradite a defendant or fails to act within a reasonable amount of time. Presumably, this provision would apply where a fugitive faces both state and federal charges, although that is not clear in the bill. Assuming that the provision would apply in cases where a defendant faces both state and federal charges, it appears that forfeiture of bail (More) SB 989 (Vargas) PageN would be barred if the U.S. elects not to extradite, even where the district attorney acted within a reasonable amount of time to extradite a defendant. The Los Angeles County District Attorney argues that a bail agent should not receive a benefit in a state prosecution "if the İfederal] government for whatever reason decides not to seek extradition." Discussions between the sponsor and Committee staff indicate that it appears that because decisions concerning extradition of a defendant by the U.S. Attorney are out of the control of the bail agent, bail should not be forfeited where the U.S. Attorney does not extradite a defendant back to California. Note: it appears that the author has agreed to strike this provision from the bill. See Comment #5 for a discussion of the proposed amendments. 7. Issue of what Constitutes a "Reasonable" Time for Prosecutors to make Extradition Decisions before Bail is Exonerated (More) This bill directs a court to vacate bail forfeiture if the prosecutor does not make a decision whether or not to extradite a defendant within a reasonable period of time. The bill does not define what constitutes a reasonable time. The bill does not set out specific factors for the court to consider in determining whether or not to exonerate bail under these circumstances. In general, discretion shall be exercised to advance the purpose of the statute being applied and achieve justice. ( TA \c 1 \s "Bailey" \l "Bailey v. Taffe (1896) 29 Cal. 422"Bailey v. Taffe (1896) 29 Cal. 422, 424.) The purpose of bail is to ensure that a defendant returns to court. However, a bail agent's failure to return a defendant to court can be excused where the task is impossible or difficult and the agent was not at fault. As such, the determination of whether or a prosecutor acted within a reasonable time in making extradition decisions will likely turn on the complexity of the case, the history of the defendant and the efforts and decisions of the bail agent. As bail cases are often appealed, this issue will likely be determined by the appellate courts in a relatively slow and costly manner. SHOULD THE BILL INCLUDE GUIDELINES TO DETERMINE IF A PROSECUTOR HAS ACTED ON EXTRADITION WITHIN A REASONABLE AMOUNT OF TIME? 8. Bar on Forfeiture of Bail in a Case where the Defendant has been Deported This bill directs a court to vacate forfeiture of bail and exonerate the bond if the bailed defendant is permanently or temporarily deported to another country. Neither the author's background material nor the letter of sponsor Aladdin Bail Bonds addresses this issue. However, the California Bail Agents Association, one of the supporters of the bill argues: "This bill would exonerate a bail bond when the defendant has been deported by the United States to a foreign government. This process İof deportation] is beyond the control of the bail agent and exoneration is the proper action that should be taken by the (More) SB 989 (Vargas) PageP court." The Los Angeles County District Attorney, who opposes all of the provisions in the bill, explained its objection to this particular provision: "İThe bill states] that if a bail agent writes a bond on a defendant who is illegally in the United States, the bond should be exonerated if İthe defendant] is deported. ? By taking risk out of writing bonds on undocumented aliens, this bill creates a virtual 'get out of jail free' card to these accused criminals." It appears that the author has agreed to strike this provision from the bill. Please see Comment #5 for a discussion of the proposed amendments. ***************