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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