BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 723 (Quirk)
As Introduced February 21, 2013
Hearing date: June 25, 2013
Penal Code
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POST RELEASE SUPERVISION:
BAIL PENDING REVOCATION HEARING
HISTORY
Source: American Bail Coalition
Prior Legislation: AB 1913 (Skinner) - 2012, held in Senate
Appropriations
Support: California Attorneys for Criminal Justice; Golden
State Bail Agents Association; Two Jinn, Inc. dba
Aladdin Bail Bonds; Taxpayers for Improving Public
Safety
Opposition:California District Attorneys Association; California
Probation, Parole and Correctional Association; Chief
Probation Officers of California; Judicial Council of
California
Assembly Floor Vote: Ayes 66 - Noes 12
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KEY ISSUE
SHOULD DEFENDANTS HELD IN CUSTODY PENDING A HEARING ON
REVOCATION OF POSTRELEASE COMMUNITY SUPERVISION BE AUTHORIZED TO
MOVE THE COURT FOR RELEASE ON BAIL?
PURPOSE
The purpose of this bill is to authorize a person on postrelease
community supervision (PRCS) who is being held in custody
pending a hearing on a petition to revoke PRCS to move for
release on bail.
Major Bail Provisions in Existing Law
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.
Const., 8th Amend.)
Existing law provides for the licensing of bail agents 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; and
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.
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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, § 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 his or her returning 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, subd. (a).)
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, subds. (c)-(e).)
Post Release Community Supervision
Existing law provides that the following classes of offenders
are subject to parole under the supervision of the Department of
Corrections and Rehabilitation (CDCR):
Defendants released after serving a term for a
serious or violent felony.
Inmates released after serving a life term under the
Three-Strikes Law.
High-risk sex offenders.
Persons subject to treatment on parole as mentally
disordered offenders.
Inmates subject to lifetime parole who were committed to
prison for a new offense after prior release on parole.
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Sex offender registrants who were been committed to
prison for a new offense after prior release on parole for
a period exceeding three years. (Pen. Code §§ 3000.08,
subds. (a) and (c) and 3451(b).)
Existing law provides that offenders not subject to parole are
to be released from custody on postrelease community supervision
(PRCS). These offenders are subject to up to three years of
local supervision. (Pen. Code §§ 3000.08, subd. (b), and 3451,
subd. (a).)
Existing law sets out mandatory conditions of release, much like
probation conditions. (Pen. Code § 3453.)
Existing law provides for "intermediate" and "appropriate"
sanctions for violations of the terms of PRSC before PRCS is
revoked. The sanctions include "flash incarceration" for up to
10 days. (Pen. Code § 3454.)
Existing law provides that where the supervising county agency
(generally, the probation department) finds through an
assessment process that intermediate sanctions for a violation
or violations of release conditions are "not appropriate," the
agency shall file a petition to revoke PRCS. (Pen. Code § 3455,
subd. (a).)
Existing law provides that the supervising PRCS agency has the
authority to require that the defendant be held in custody
pending the revocation hearing. The decision to hold the
defendant shall be based on a determination that the defendant
poses an unreasonable risk to public safety, he or she may not
appear at the hearing if released, or for any other reason in
the interests of justice. (Pen. Code § 3455, subd. (b).)
Existing law provides that the PRCS revocation hearing shall be
"held within a reasonable time" after the filing of the
petition. (Pen. Code § 3455, subd. (b).)
Existing law provides that the superior court in each county, in
order to manage PRCS caseloads, may appoint hearing officers, as
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specified, to rule on petitions for revocation of PRCS. (Gov.
Code § 71622.5.)
Existing law provides that the hearing officer may, upon finding
that the defendant has violated the terms of PRCS, do any the
following:
Return the defendant to PRCS, with modified conditions,
including a jail term.
Revoke PRCS and return the defendant to jail.
Refer the defendant to reentry court (Pen. Code § 3015)
or other "evidence-based" program.
Jail terms may not exceed 180 days. (Pen. Code § 3455,
subd. (a)(1)-(3).)
Existing law provides that where peace officer believes that a
defendant under PRCS has violated the terms of release, the
officer may bring the defendant to the supervising agency. An
officer employed by the supervising agency may seek an arrest
warrant for the defendant. (Pen. Code § 3455, subd. (a)(4).)
Existing law provides that the court or hearing officer may
issue an arrest warrant for any PRCS defendant who does not
appear for hearing on the petition for revocation or for any
reason in the interests of justice. The court may, in the
interests of justice, remand into custody any defendant who
appears at the hearing. (Pen. Code § 3455, subd. (a)(5).)
Existing law provides that if PRCS is revoked, the hearing
officer can impose a county-jail sentence of up to 180 days, but
the offender cannot be returned to prison. (Pen. Code §§ 3455,
subd. (c) and 3458.)
This bill allows a person subject to postrelease community
supervision (PRCS) who has had a revocation petition filed
against him or her to make an application for bail in the
superior court, under the following terms:
Admittance to bail pending revocation of PRCS is within
the discretion of the court.
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An application for bail for a person pending hearing on
revocation of PRCS shall be governed by existing procedures
for the setting of bail.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
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part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
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Bail is a constitutional right granted to all
defendants. However, there is no clear statutory
authorization or procedure for bail under realignment
for those individuals accused of violating conditions
of post-release community supervision. Under
realignment, many more sentences will be served in
county jail rather than in a state prison. This
change, though well intentioned to reduce the prison
overcrowding crisis, creates pressure on the county
for bed space. Additionally, counties will be
responsible for processing individuals who have been
arrested after violating the terms of post-release
community supervision. This too will increase the
number of individuals in county jails as they await
court proceeding to determine if they are going back
to jail.
Bail is a proven, cost effective means of relieving
pressure on the county jail system. It also provides
those incarcerated awaiting a court proceeding a way
to return to their family, jobs, or school.
Unfortunately, it is not clear if realignment allows
for bail for those individuals who violate the
conditions of post-release community supervision.
AB 723 creates a process for those who are
incarcerated awaiting a post-release community
supervision revocation hearing to seek bail. This
bill provides the opportunity under the appropriate
circumstances, with all due consideration for public
safety, for individuals to get back to their families,
jobs, and not take up valuable bed space in our county
jails.
2. The History and Purposes 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
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defendant is said to be in the constructive custody of the bail
agent. (Taylor v. Taintor (1862) (16 Wall.) 83 U.S. 366, 372.)
"In pre-Norman England, a bondsman ? could suffer the same
penalty as the fugitive. This ? led to the allowance of rather
extreme measures for capture [of the fugitive]." (Ouzts v.
Maryland National Ins. Co. (1974) 505 F.2d 547, 550.) These
measures include allowing a bail agent to arrest a fugitive in a
state other than where bail was issued. (Ibid.)
3. Likely Limited Application of This Bill
This bill specifically authorizes bail for a person who has been
arrested after violating the terms of postrelease community
supervision (PRCS). It appears that circumstances where release
on bail would be feasible would be limited
PRCS defendants who face a petition to revoke will very likely
be brought before a court quickly for a hearing. No jury trial
is required and, as with petitions to revoke probation or
parole, it appears that the violation need only be established
by a preponderance of evidence, not proof beyond a reasonable
doubt. The evidence is likely to be uncomplicated, as serious
violations would likely involve new criminal charges.
Under the PRCS statutes enacted as part of realignment,
probation officers are authorized, without the need for court
approval, to use intermediate sanctions, including graduated
flash-incarceration<1> for PRCS violations. Probation officers
are effectively directed to file for revocation of PRCS, and a
likely return to custody, only where intermediate sanctions are
not appropriate. (Pen. Code §§ 3454-3455.) Probation officers
are also directed to determine whether or not the defendant
shall be held in custody pending the hearing. Relevant factors
are public safety, the likely return of the defendant to court
for the hearing, or any other factors that serve the interests
of justice. (Pen. Code § 3455, subd. (b).) These are the
factors a court would weigh in determining whether a defendant
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<1> Flash incarceration generally means rapidly imposed
short-term jail sanctions for violations of conditional release
or a treatment program.
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would be released on bail. Thus, the bill would apply in cases
where the court's determination of these factors would differ
substantially from that of the probation department.
Further, one would expect that a PRCS revocation hearing would
be heard soon after the petition was filed and would consider
many of the two critical issues considered in the bail hearing -
the defendant's record and the seriousness of the offense. As
such, the bail hearing could well be seen as an unnecessary and
duplicative use of scarce judicial resources. Committee members
may wish to ask the sponsor and opponents if they have
information about the length of time between the filing of a
petition for revocation of PRCS and the holding of the
revocation hearing.
WOULD THE AUTHORITY TO GRANT BAIL TO PERSONS HELD IN CUSTODY
PENDING A HEARING ON REVOCATION OF PRCS BE SELDOM EXERCISED?
DOES THE SPONSOR HAVE INFORMATION ABOUT THE AVERAGE OR USUAL
LENGTH OF TIME BETWEEN THE FILING OF A PRCS REVOCATION PETITION
AND THE HOLDING OF THE HEARING ON THE PETITION?
4. Own Recognizance Release of Persons in Custody Pending Post
Release Community Supervision (PRCS) Revocation
This bill specifically states a person pending a hearing on
revocation of PRCS "may file an application for bail with the
superior court." A maxim of statutory interpretation provides
that the specific reference to one thing in a bill acts to
exclude others. It can be argued that the bill would not allow
own recognizance release (OR) in a PRCS revocation matter.
Nevertheless, the bill also provides that a bail application in
a PRCS matter shall be governed the procedures governing the
setting and granting of bail and OR in Penal Code sections 1268
and following. Penal Code section 1269 provides that court may
release a person on OR who could be released on bail. It can be
argued that this provision would allow a court to grant OR to a
person pending a PRCS revocation hearing. Penal Code section
1269 does specifically refer to a person "who has been arrested
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for, or charged with, an offense?" While a person arrested for
violating a condition of PRCS would not have been directly
arrested for committing an offense, that offense underlies PRCS
supervision.
At best, the bill is ambiguous concerning whether or not a court
could grant an OR release to a person pending PRCS revocation.
If the author intends to authorize a court to release a person
held in custody pending a hearing on revocation of PRCS on OR,
the bill should specifically state that.
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IS THE BILL INTENDED TO ALLOW A COURT TO RELEASE A PERSON HELD
IN CUSTODY PENDING A PRCS REVOCATION HEARING ON HIS OR HER OWN
RECOGNIZANCE?
SHOULD THE BILL BE AMENDED TO PROVIDE THAT AUTHORITY?
5. Argument in Support
The American Bail Coalition argues in support:
It is not clear under realignment that a bail
procedure is set up for those who violate the
conditions of post-release community supervision. To
resolve this issue, AB 723 creates a process for those
who are incarcerated awaiting their revocation
proceeding to seek bail. The procedures would be the
same as pre-trial bail and as such would provide the
opportunity under the appropriate circumstances, with
all due consideration for public safety, for
individuals to get back to their families, jobs, etc.
and not take up valuable bed space in our county
jails.
6. Argument in Opposition
The California District Attorneys Association argues in
opposition:
The bill would apply to offenders released from state
prison who are subject to post release community
supervision (PRCS). In the absence of realignment,
these offenders would still be on parole. There is no
specific statute that allows a court to release a
parolee facing a petition for revocation on bail, nor
is there a statute that prohibits the granting of bail
in such a case. Thus, the bill is not necessary.
Additionally, we are concerned that the bill would
encourage courts to grant bail in these cases. We
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fear this prospect given that it is likely that a
person facing a PRCS revocation petition has already
received intermediate sanctions and for whom
revocation is a "last resort," making release on bail
pending that petition potentially inappropriate.
Finally, as a technical matter, the bill neglects to
address circumstances in which a revocation petition
is filed by the district attorney as permitted under
Penal Code Section 1203.2(b).
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