BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  SB 1180|
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                                 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 
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          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.


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           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 

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          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 

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            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 

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               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 

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            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 

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          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.

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          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 

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          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 

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            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 

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               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 

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               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.


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               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 


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                         SUPPORT/OPPOSITION:  SEE ABOVE

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