BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1180 (Hancock) 0
As Amended April 9, 2012
Hearing date: April 24, 2012
Penal Code
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PRE-TRIAL RELEASE
HISTORY
Source: American Civil Liberties Union
Prior Legislation: None
Support: California Attorneys for Criminal Justice; California
Public Defenders Association; Drug Policy Alliance
Opposition:Golden State Bail Agents Association; American Bail
Coalition; Crime Victims United; California District
Attorneys Association
KEY ISSUE
SHOULD EVALUATION AND SUPERVISION PROGRAMS FOR "OWN
RECOGNIZANCE" PRETRIAL RELEASE BE DEFINED IN STATUTE AND
IMPLEMENTED AT THE DISCRETION OF A PARTICIPATING COUNTY, AS
SPECIFIED?
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PURPOSE
The purposes of this bill are to 1) define a program of
evaluation and supervision for pretrial own recognizance (OR)
release; 2) implement these programs at the discretion of each
county; 3) provide that the court, probation, sheriff or other
designated government entity may employ staff to evaluate
defendants for release, prepare and submit reports to the court
and supervise released defendants; 4) require that pretrial
release reports include evidence-based risk evaluations; 5)
presume that a defendant charged with a misdemeanor or jail
felony (Pen. Code § 1170, subd. (h)) is eligible for OR release;
6) provide that where an OR release would not assure public
safety or the return of the defendant to court, the court shall
set bail as necessary for these purposes; 7) provide that a
person who is on probation or parole, or who has prior failures
to appear, as specified, and who is charged with a felony or
other specified crime shall only be granted OR release after a
hearing; 8) provide that in granting OR release or setting bail,
the court shall impose reasonable conditions to assure public
safety and the defendant's return to court; 9) provide that
pretrial release staff shall do the following: notify defendants
of court appearances and obligations, require a defendant to
report to staff periodically, monitor compliance with release
conditions, report violations of release conditions and assist
law enforcement in detaining a defendant for whom a warrant has
been issued; and 10) set out legislative findings on the needs
for, and benefits of, pretrial release evaluation and
supervision programs.
Existing Law Related to Bail
Existing provisions of the United States Constitution state that
excessive bail shall not be required, nor excessive fines
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imposed, nor cruel and unusual punishments inflicted.
(U.S.Const., 8th Amend.)
Existing law provides for the licensing of bail agents, bail
permittees, and bail solicitors by the Insurance Commissioner.
(Ins. Code § 1800 et seq.)
Existing provisions of the California Constitution state that a
person shall be granted release on bail, except for the
following crimes when the facts are evident or the presumption
great:
Capital crimes;
Felonies involving violence or sexual assault if 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;
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; and
In setting the amount of bail, the court shall consider
the seriousness of the offense, the defendant's record, and
the probability of his or her return to court. The court
may release a person on his or her own recognizance. (Cal.
Const., Art. I, § 12.)
Existing statutory law 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 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.
(Pen. Code § 1275 (a).)
Existing constitution provisions state that the court shall
consider the safety or the victim and the victim's family in
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setting bail and release conditions for a defendant. (Cal.
Const., Art. I, § 28, subd. (b)(3).)
Existing law provides that the superior court in each county
shall adopt a "uniform schedule of bail" for all offenses except
Vehicle Code infractions. The judges shall consider the
seriousness of the offense, including enhancements and
aggravating factors. (Pen. Code § 1269b (c)-(e).)
Existing law provides that a person released on bail for a
felony who willfully fails to appear in court, as specified, is
guilty of an alternate felony-misdemeanor, punishable by a fine
of up to $10,000, a felony jail term of 16 months, two years or
three years, or a misdemeanor jail term of up to one year, or
both such fine and imprisonment. (Pen. Code § 1320.5.)
Existing law provides that if an on-bail defendant fails to
appear for arraignment, trial, judgment, or any other scheduled
court appearance, the bail is forfeited unless the clerk of the
court fails to give proper notice to the surety or depositor
within 30 days, or the defendant is brought before the court
within 180 days. (Pen. Code § 1305, subds. (a) and (b).)
Existing Law Relevant to Bail and Own Recognizance Release
Existing law 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 - by the court. (Penal
Code § 1270.)
Existing law states that where a person has been arrested
without a warrant for a bailable felony offense or the
misdemeanor of violating a domestic violence restraining order,
the following provisions apply:
Where the arresting officer believes that the amount of
bail set out in the bail schedule is insufficient to assure
the appearance of the defendant in court or the amount is
insufficient to assure protection of the victim, or a
relative of a victim, of domestic violence the officer
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shall prepare a declaration setting forth the facts
supporting such a conclusion.
The declaration of the officer shall be made under
penalty of perjury.
The defendant may apply to be released on bail in an
amount lower than the schedule provides or on his or her
own recognizance. The defendant's application may be made
personally, through counsel, or by a family member or
friend.
The court or magistrate has discretion to set bail on
terms and conditions that are appropriate.
If no change in bail is made within eight hours
following application, the defendant shall be entitled to
release pursuant to the bail schedule. (Pen. Code §
1269c.)
Existing law provides that an arrested person, or his or her
attorney, family member or friend, may not make an ex-parte
application for OR release or reduced on bail if the person was
arrested for a serious felony or a violent felony (except
residential burglary), intimidating a witness, as specified,
cohabitant or spousal abuse, as specified, or violating a
domestic violence restraining order, as specified. (Pen. Code
§§ 1269c and 1270.1.)
Existing law provides that before any person arrested for a
serious or violent felony, except residential burglary, spousal
rape, stalking, inflicting corporal injury on a spouse, battery
on a spouse, dissuading a witness, or criminal threats to
inflict death or great bodily injury may be released on bail in
an amount that is more or less than the amount contained in the
schedule of bail for the offense, or released on his or her OR,
a hearing must be held in open court before the magistrate or
judge. However, in a domestic violence matter, and upon a
declaration of facts by a law enforcement officer, the court may
increase the bail amount without a hearing. (Pen. Code §
1270.1.)
Existing Law Related to Own Recognizance Release
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Existing law 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. (Pen. Code § 1270.)
Existing law provides that an arrested person, or his or her
attorney, family member or friend, may not make an ex-parte
application for OR release or reduced on bail if the person was
arrested for a serious felony or a violent felony (except
residential burglary), intimidating a witness, as specified,
cohabitant or spousal abuse, as specified, or violating a
domestic violence restraining order, as specified. (Pen. Code
§§ 1269c and 1270.1.)
Existing law provides that before a defendant is granted OR
release, he or she must complete and file a signed agreement
that includes:
A promise to appears at all times and places ordered by
the court;
A promise to obey all conditions of release imposed by
the court;
A promise not to leave the state without permission of
the court;
Agreement to waive extradition if he or she is
apprehended outside the state; and
Acknowledgement that he or she has been informed of all
applicable consequences of violating the release agreement.
(Pen. Code § 1318.)
Existing law provides that a court, with the concurrence of the
board of supervisors, may employ an investigative staff to
recommended whether defendants should be released on OR. (Pen.
Code § 1318.1, subd. (a).)
Existing law provides any OR investigative report concerning a
defendant charged with a violent felony (Pen. Code § 667.5,
subd. (c)) or a felony violation of driving under the influence
with injury (Veh. Code § 23153) shall be submitted for the court
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for review and include written verification of the following:
Any outstanding warrants.
Prior failures to appear.
Criminal record.
Residence in the past year. (Pen. Code § 1318.1, subd.
(b).)
Existing law provides that no person arrested for a violent
felony (Pen. Code § 667.5, subd. (c)) may be released on OR
until a court hearing as to which the prosecutor has been given
notice and an opportunity to be heard. (Pen. Code § 1319, subd.
(a).)
Existing law provides that no person charged with a violent
felony shall be granted OR release if he or she has failed to
appear in a felony matter. (Pen. Code § 1319, subd. (b).)
Existing law provides that in determining whether to grant OR
release to an eligible defendant charged with a violent felony,
the court shall state its reasons on the record for granting or
denying OR release and shall consider the following:
The existence of any outstanding warrants.
Information in the investigative reports, although the
court may still release the defendant if the court has not
received the report.
Any information presented by the prosecutor. (Pen. Code
§ 1319, subds. (b)-(c).)
Existing law (Pen. Code § 1319.5) provides that OR release of
the following defendants shall not be granted without a court
hearing:
Any defendant who is on probation or parole at the time
of a new arrest.
Any defendant who has failed to appear three or more
times in the preceding three years, as specified, and is
charged with one of the following offenses:
o Any felony.
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o Any gang offense.
o Assaultive conduct.
o A theft offense.
o Burglary
o Any offense in which the defendant was armed
with or used a firearm.
Existing law provides that any person who willfully fails to
appear, as specified, after being released on OR, is guilty of a
crime as follows:
Where the charge or conviction is a misdemeanor, the
offense is a misdemeanor, punishable by imprisonment in a
county jail for up to six months, a fine of up to $1,000,
or both.
Where the charge of conviction is a felony, the offense
is an alternate felony misdemeanor, punishable by a fine of
up to $5,000, a felony jail term of 16 months, two years or
three years, or a county jail term of up to one year for a
misdemeanor conviction. (Pen. Code § 1320.)
Provisions in this Bill Concerning Pretrial Release Evaluation
and Supervision, Including Considerations for Granting OR
Release, Setting Bail and Determining Release Conditions
This bill provides that a sheriff, probation department or other
local government agency may, with the concurrence of the board
of supervisors, employ an investigate staff to determine whether
or not a defendant may be released on his or her own
recognizance.
This bill provides that a defendant being held on misdemeanor
charges or felony charges punishable only by a term in a county
jail (Pen. Code §1170 (h)) shall be entitled to OR release
unless the court finds on the record that an OR release of the
defendant would either 1) compromise public safety, or 2) not
assure the return of the defendant to court.
This bill provides that where the defendant is not entitled to
OR release because such release would compromise public safety
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or not assure the return of the defendant to court, the court
shall specify the least restrictive terms of OR release that
will assure public safety and the defendant's return to court.
The least restrictive conditions for release on OR of a
defendant charged with a jail felony or a misdemeanor may
include:
Reporting to the court, law enforcement, probation or
other local government entity.
Prohibitions on contact with alleged victims or
potential witnesses.
Restrictions on travel or place of abode.
Curfew.
Restrictions on alcohol consumption.
Refraining from use of controlled substances.
Home detention, with or without electronic monitoring.
This bill provides that where the court determines that release
on OR of a person charged with a misdemeanor or jail felony will
compromise public safety or not reasonably assure the return of
the defendant to court, the court shall state the reasons for
its findings on the record. The court shall then set bail as
reasonably necessary to assure the appearance of the defendant
in court.
This bill provides that a pretrial OR release investigation
report may be prepared for any defendant not charged with a
violent felony or driving under the influence with injury.
This bill provides that a pretrial OR release investigation
report shall include "all results of an evidence-based pretrial
risk assessment" concerning the risk the defendant presents to
public safety and the probability the defendant will return to
court.
This bill defines an "evidence based" pretrial risk assessment
as an objective, standardized analysis consistent with the best
available scientific evidence and professional knowledge.
This bill provides that an interview of the defendant for
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purposes of pretrial OR release evaluation shall not include
inquiry into the facts of the incident underlying the charges,
and any information about the incident provided by the defendant
shall not be included in the report. Information provided by
the defendant shall solely be used to evaluate pretrial OR
release and for determining appropriate conditions for release.
This bill provides that pretrial OR release reports may be filed
as part of the case record.
This bill provides that pretrial OR release reports are
confidential and shall be sealed by the court upon receipt and
made available only upon court order; except that reports shall
be available upon request to any of the following:
A local or state criminal justice agency.
An agency to which the defendant has been referred for
assessment or treatment.
Defense counsel.
This bill provides that in setting conditions for pretrial
release and in setting, reducing or denying bail, the court
shall consider the following, in addition to the protection of
the public, the defendant's criminal record and the seriousness
of the charged offense:
The nature and circumstances of the charged offense,
including whether or not a drug offense involved large
quantities.
The history and characteristics of the defendant,
including employment, family, duration of residence,
educational or vocational program enrollment, drug or
alcohol dependence, and any drug or alcohol treatment.
Whether the defendant was on probation, parole or any
form of release pending trial, sentencing or appeal at the
time of his or her arrest.
This bill provides that where a court determines that "unusual
circumstances" allow the court to reduce bail below the county
bail schedule for a serious felony, unusual circumstances shall
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not solely be found because the defendant has made all previous
court appearances.
This bill provides that a court, sheriff, probation department,
or other designated agency may, with concurrence of the board of
supervisors, employ "supervision staff" to monitor the
defendant's compliance with the conditions of release.
Supervision staff may do any of the following:
Notify the defendant of court appearances or
obligations.
Require the defendant to report periodically in person
or by telephone or mail.
Monitor and assist the defendant with release
conditions.
Supervise a defendant's home detention, with or without
electronic monitoring.
Report violations of release conditions.
Provide information to assist law enforcement in
detaining any defendant for whom a bench warrant has been
issued.
This bill includes the following legislative findings and
declarations:
Pretrial custody reform is urgently needed in
California, as the pretrial custody rate of 71% far exceeds
the national average of 61%.
Pretrial custody reform will give counties flexibility
in managing pretrial defendants, thereby supporting
implementation of criminal justice realignment.
Pretrial service programs have been successfully
implemented in many jurisdictions, reducing jail
populations, saving money, reducing recidivism and
protecting the public.
Evidence-based programs will improve pretrial release
decision-making and outcomes.
Report confidentiality will allow release programs to
operate effectively and protect the rights of persons who
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submit sensitive information for the reports.
This bill provides that the salaries of pretrial investigation
and supervision staff are a proper charge against the county.
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
District of California established a Receivership to take
control of the delivery of medical services to all California
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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.
COMMENTS
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1. Need for This Bill
According to the author:
SB 1180 will support the implementation of public
safety realignment by providing counties greater
flexibility in managing their pretrial populations,
using best practices developed over many years across
many jurisdictions. Evidence-based pretrial
population management preserves jail space for those
who pose a risk to public safety and allows for the
release - with monitoring if necessary - of those who
can be safely returned to the community pending trial.
Current law does not expressly authorize or prohibit
any entity other than the court to conduct
investigations to determine whether the defendant is
appropriate for release on his or her own recognizance
(OR); 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. As a consequence, courts
may be releasing defendants who may not return to
court or who pose a risk to the public. Conversely,
courts may be denying release to defendants who pose
no risk to public safety and who will return to court.
For a low-level felony, the court typically sets bail
according to the bail schedule and release is
ultimately determined by whether the defendant can
afford to post bail - not on his or her
appropriateness for pretrial release.
Supporting the court: This legislation would clarify
that other county agencies can take on the pretrial
investigative function, thereby making these
investigations more likely to occur in counties that
wish to do so. This will allow counties greater
flexibility in managing their pretrial populations
and, importantly, ensure that the court's decision to
order release, conditions of release, and bail is
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based on a credible assessment of the defendant's risk
to public safety and likelihood of appearance as
required.
Letting counties decide: The bill will allow, but not
require, a county-authorized agency (e.g., court,
sheriff or probation) to produce pretrial
investigation reports. Thus, reports need only be
produced if counties so choose and therefore the bill
will not constitute an imposition on counties. This
bill will ensure that, when a pretrial investigation
report is produced, it includes factors that research
shows accurately assess the defendant's risk (or lack
thereof) to public safety and the likelihood that he
or she will appear as required by the court. This
enhances the credibility of the pretrial evaluation
and provides standardized and appropriate information
to the court for its determination of whether to order
release and whether to set bail.
Reaffirming bail's intent: This bill directs the court
to set bail at a level "as is reasonably necessary" to
assure appearance. This furthers the intent of bail,
which is to ensure appearance as required, not to
determine based on wealth who should and should not be
released while awaiting trial.
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 ? Ýcould] suffer the same
penalty as the fugitive. This ? led to the allowance of rather
extreme measures for capture Ýof the fugitive]." (Ouzts v.
Maryland National Ins. Co. (1974) 505 F.2d 547, 550.) However,
it appears that bail in England was typically posted in the form
of pledges of land or property by the defendant personally or by
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a relative. Commercial bail - bail posted by private businesses
for profit - was an innovation of the American frontier in the
early 1880s. (Illegal Globally, Bail for Profit Remains in
U.S., Liptak, New York Times, Jan. 29, 2008.)
In current practice, a defendant pays a premium or fee - often
the state maximum of 10% of the amount of the bond. That is, a
defendant for whom bail is set at $100,000 would likely pay a
non-refundable premium of $10,000 to the bail agent. The agent
then posts a bond with the court in the amount of $100,000,
securing the release of the defendant from jail. The bond is
actually issued by an insurance company. The bail contract
would normally include an agreement that the defendant reimburse
the agent for the full value of the bond in the event that the
bond is paid to the court. Bail agents typically require
collateral for the bond. Collateral can include real property,
cars, bank accounts and other items of value.
A bail bond is forfeited and paid to the court only where the
defendant fails to return for a court appearance. The actual
payment of the bond is generally stayed for 180 days after the
defendant fails to appear and can be postponed further through a
motion to the court under specified circumstances. If the
defendant returns or is returned to court within that time, the
bond need not actually be paid. It does not matter how or why
the defendant is returned to court within the 180 grace period.
The bond is not paid if the defendant is arrested and held in
custody on new charges. The bond is not paid if the defendant
returns to court voluntarily. The bond is not paid if the
defendant is extradited to California from a foreign country.
In California, bail is largely set through a bail schedule that
lists preset amounts of bail for various crimes. A committee of
judges in each county promulgates the bail schedule for that
county. (Pen. Code § 1269b, subd. (c).) A defendant or the
prosecution can move the judge presiding over a particular case
to raise or lower the amount of bail, or the defendant can
request release on his or her own recognizance. (Pen. Code §
1275.) Additional statutory rules apply if the defendant is
charged with a serious felony or domestic violence. (Pen. Code
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§ 1270.1.) Most counties also have a process for determining
whether or not defendants charged with certain low-level crimes
can obtain an OR release before the initial court appearance.
(Pen. Code § 1318.1.)
3. Commercial Bail Release is Common only in the United States
Commercial bail is largely not employed outside the United
States and the Philippines. This is true even in countries,
including Canada, the United Kingdom, Australia and others that
follow the common law<1> system that was developed in England.
(The United States is a common law country.) In many countries,
including Canada and England, commercial bail is illegal. It is
considered unethical in Australia, India and South Africa.
(Illegal Globally, Bail for Profit Remains in U.S., Liptak, New
York Times, Jan. 29, 2008.)
The New York Times article noted that commercial bail has been
eliminated in only four jurisdictions in the United States -
Illinois, Kentucky, Oregon and Wisconsin. The article noted
that the American Bar Association has opined that commercial
bail discriminates against the poor and middle class, does
little to assure public safety and usurps decisions on release
that should be made by the courts.
A prosecutor in Oregon stated that the bail industry was "rife
with corruption" but also noted that failures to appear
increased after commercial bail was eliminated. The story noted
that the financial incentive for bail agents to apprehend
clients and the relatively free hand given bail agents and
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<1> Under common law, as opposed to the civil-code structure,
enduring tradition and rulings of courts interpreting statutory
law have the force of law (when not in conflict with
constitutional provisions or legislative acts. (Civ. Code § 22;
Blacks Law Dic. 5the Ed. West Pub. 1979).
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bounty hunters<2> in arresting fugitive defendants often makes
bail agents particularly efficient in returning fugitives to
court.
4. International Association of Police Chiefs, United States
Department of Justice and Pretrial Justice Institute Policy
Paper and Study on non-Bail Pretrial Release
In anticipation of pending criminal justice realignment, the
California State Sheriffs' Association, the California
Association of Counties and the Chief Probation Officers of
California held a conference on September 21, 2011, in
Sacramento called "Innovations in Public Safety and Justice in
California."
A booklet of conference resources was prepared and distributed.
The resource booklet included a February, 2011 study and policy
paper on pretrial release prepared by the International
Association of Chiefs of Police (IACP), in collaboration with
the United States Department of Justice and the Pretrial Justice
Institute. The IACP paper argued that pretrial release
decisions should be based on an evaluation of risk. In
particular, pretrial release decisions should be made based on
the danger the defendant presented to the public and the
likelihood the defendant would return to court.
The study concluded that the setting of money bail was often
"haphazard." The amount of money bail set did not adequately
reflect or consider the danger the defendant presented to the
public. While bail amounts could be raised in response to risk,
too often dangerous defendants are released prior to trial
solely because they had the money to post bail. The paper noted
examples in which bail agents had posted relatively high-amount
bonds for dangerous defendants who had paid discounted premiums.
Thus, despite the fact that the amount of the bail bond was
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<2> Reports of abuses by bounty hunters led to the enactment in
California of the Bail Fugitives Recovery Persons Act in 1999.
(AB 243 (Wildman) Ch. 426, Stats. 1999.) The Act was expanded
in 2004 and sunset in 2010. AB 2029 (Ammiano), pending in the
Assembly, would reenact the bounty hunter regulation law.
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significant, the value of the bond was not a barrier to the
defendant in gaining release.
The IAPC paper recommended adoption of publicly funded and
government-run pretrial release programs that evaluated and
supervised defendants through the pretrial process. The
programs should be consistent with the up-to-date research. The
IAPC paper found that pretrial release programs should include
the following features and purposes:
Ensure the safety of the public.
Supervise defendants awaiting trial.
Ensure that defendants return to court.
Reduce jail overcrowding, thereby wisely using public
funds.
5. Argument in Opposition
The Golden State Bail Agents Association (GSBAA) argues in
opposition of the bill and suggests certain amendments:
Unless amended, SB 1180 will undermine public safety
and deprive victims of their day in court by greatly
expanding pre-trail release of defendants on their own
recognizance (OR) with or without electronic
monitoring and without bail.
The bail industry is highly motivated to return bail
fugitives to justice as shown in an article in the
January 28, 2008 New York Times. The article noted
that only 3% of defendants released on surety bond
remained fugitives one year after they failed to
appear while 8% of defendants released on their own
recognizance remained at large after one year.
Furthermore, those put up the money or cosign the bond
have an incentive to verify that the defendant does
not represent an unacceptably high risk of flight, and
they have an incentive to help the defendant make
scheduled court hearings.
Electronic monitoring can be useful in the right
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circumstances, such as in the post-conviction context
where bail is not available. However, electronic
monitoring is not a panacea. Bail is a superior
method of pre-trial release because bail has lower
rates of failures to appear and lower costs than
electronic monitoring. A 2011 study found that
electronic monitoring had a 70% rate of false alerts
causing increases in officer workloads, costs and
dangers to the public. (Armstrong and Freeman, Journ.
of Crim. Justice 39 (2011) 175-182)
We suggest an amendment to add reduction of bail as a
mandatory consideration in the recommendations and
reports about defendants being evaluated for OR. As
noted above, bail is a superior method of release to
OR at no cost to the tax payers. Evidence-based
pre-trial risk assessment tools apply equally well to
the determination of whether to reduce bail or release
on own recognizance.
This bill also conflicts with the 30/60 day waiting
period in the statute authorizing pretrial release of
defendants on electronic monitoring through the
discretion and supervision of the county sheriff. We
can provide the Committee with amendments that would
bring the bill it into harmony with that statute.
Finally, this bill may also be unconstitutional under
Marsy's Law (Proposition 9 of 2008). Marsy's Law
added the public safety bail provision to the
California Constitution (Art. I, § 28(f)(3)), which
requires that the protection of the public and the
safety of the victim shall be the primary
considerations in bail or own recognizance release.
The safety of the victim is not listed as a primary
consideration in this bill. Instead the bill states
only that "public safety" shall be the primary
consideration in deciding whether to release the
defendant.
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6. Sponsor's Argument in Support of the Bill and Response to the
Opposition Arguments
The American Civil Liberties Union argues that the bill does
protect public safety and creates a fair and cost-effective
pretrial release system:
The American Bar Association and the National
Association of Pretrial Services Agencies ? recommend
Ýthe following in pretrial release programs]:
quantitative risk assessments, pretrial notification
and follow-up after failure to appear, limited
conditions, a wide range of sanctions for violation of
release 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. Qualitative
risk assessments, a broad range of possible sanctions,
and mental health screening lower both rates. The
imposition of administrative sanctions and a large
number of conditions increase both rates.
Kent County, Michigan reduced its pretrial population
from 60 percent to 31 percent through a pretrial
services program in 2003. The failure to appear rate
of those in the program 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 ? 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.
The Santa Cruz County Jail was over capacity soon
after opening its doors in 1981. By 2004,
overcrowding was such that a Grand Jury Report deemed
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the jail dangerous for inmates and staff. Santa Cruz
County found that many low-risk pretrial defendants
were being held unnecessarily. In 2005, the probation
department and sheriff's detention staff introduced a
validated risk assessment tool to identify whether
pretrial defendants posed significant risks to the
community. Probation staff developed a supervision
program and reporting rules. 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. In 2011,
Santa Cruz's pretrial detention rate was 56 percent,
far below the state-wide average.
Baltimore, Maryland: A Justice Policy Institute
report on the City of Baltimore's Pretrial Release
Services Program found that of the 6,000 to 7,000
pretrial defendants supervised by the program
annually, ninety-six percent (96 percent) of
supervisees are not arrested on new charges while
awaiting trial. Additionally, ninety-four percent (94
percent) of supervisees appear for their scheduled
court date. Monitoring a pretrial defendant through
the program costs the city only $2.50 per day, as
opposed to $100 per day to incarcerate the same
person.
Camden County, New Jersey. 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 capacity. The severe
overcrowding problem resulted in a court order for
jail population reduction. Camden found that
validated risk assessment tools and alternatives to
incarceration for low-risk pretrial defendants
significantly eased the burden on its system. 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.
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