BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1180| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 1180 Author: Hancock (D) Amended: 04/09/12 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 5-2, 04/24/12 AYES: Hancock, Calderon, Liu, Price, Steinberg NOES: Anderson, Harman SUBJECT : Pre-trial release SOURCE : American Civil Liberties Union DIGEST : This bill (1) defines a program of evaluation and supervision for pretrial own recognizance (OR) release;( 2) implements these programs at the discretion of each county; (3) provides 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) requires that pretrial release reports include evidence-based risk evaluations; (5) presumes that a defendant charged with a misdemeanor or jail felony is eligible for OR release; (6) provides 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) provides 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 CONTINUED SB 1180 Page 2 hearing; (8) provides 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) provides 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) sets out legislative findings on the needs for, and benefits of, pretrial release evaluation and supervision programs. ANALYSIS : Existing law related to bail : Existing provisions of the United States Constitution state that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (U.S. Constitution, 8th Amend.) Existing law provides for the licensing of bail agents, bail permittees, and bail solicitors by the Insurance Commissioner. (Insurance Code Section 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 release. CONTINUED SB 1180 Page 3 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, Section 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. (Penal Code Section 1275 (a).) Existing constitution provisions state that the court shall consider the safety or the victim and the victim's family in setting bail and release conditions for a defendant. (Cal. Const., Art. I, Section 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. (Penal Code Section 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. (Penal Code Section 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. (Penal Code CONTINUED SB 1180 Page 4 Section 1305, subds. (a) and (b).) Existing law relevant to bail and own recognizance release : 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 - by the court. (Penal Code Section 1270.) 2.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 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. (Penal Code Section 1269c.) 1.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 CONTINUED SB 1180 Page 5 felony (except residential burglary), intimidating a witness, as specified, cohabitant or spousal abuse, as specified, or violating a domestic violence restraining order, as specified. (Penal Code Sections 1269c and 1270.1.) 2.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. (Penal Code Section 1270.1.) Existing law related to own recognizance release: 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. (Penal Code Section 1270.) 2.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. (Penal Code Sections 1269c and 1270.1.) 3.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 CONTINUED SB 1180 Page 6 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; Acknowledgement that he or she has been informed of all applicable consequences of violating the release agreement. (Penal Code Section 1318.) 1.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. (Penal Code Section 1318.1, subd. (a).) 2.Provides any OR investigative report concerning a defendant charged with a violent felony (Penal Code Section 667.5, subd. (c)) or a felony violation of driving under the influence with injury (Veh. Code Section 23153) shall be submitted for the court for review and include written verification of the following: Any outstanding warrants. Prior failures to appear. Criminal record. Residence in the past year. (Penal Code Section 1318.1, subd. (b).) 1.Provides that no person arrested for a violent felony (Penal Code Section 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. (Penal Code Section 1319, subd. (a).) 2.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. (Penal Code Section 1319, subd. (b).) 3.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 CONTINUED SB 1180 Page 7 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. (Penal Code Section 1319, subds. (b)-(c).) 1.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. 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. 1. 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. (Penal Code Section 1320.) Provisions in this bill concerning pretrial release CONTINUED SB 1180 Page 8 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 (Penal Code Section 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 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. CONTINUED SB 1180 Page 9 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 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 CONTINUED SB 1180 Page 10 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 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 CONTINUED SB 1180 Page 11 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 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 5/3/12) American Civil Liberties Union (source) California Attorneys for Criminal Justice California Public Defenders Association Drug Policy Alliance OPPOSITION : (Verified 5/3/12) American Bail Coalition California Bail Agents Association California District Attorneys Association Crime Victims United Golden State Bail Agents Association ARGUMENTS IN SUPPORT : 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 CONTINUED SB 1180 Page 12 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 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 CONTINUED SB 1180 Page 13 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. ARGUMENTS 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. CONTINUED SB 1180 Page 14 Electronic monitoring can be useful in the right 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, Section 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. RJG:nl 5/3/12 Senate Floor Analyses CONTINUED SB 1180 Page 15 SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED