BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 8 0 5 AB 805 (Jones-Sawyer) As Introduced February 21, 2013 Hearing date: May 14, 2013 Penal Code JM:mc BAIL SETTING CONSIDERATION OF REPORT ON OWN RECOGNIZANCE RELEASE HISTORY Source: Author Prior Legislation: SB 1180 (Hancock) - 2012, died on the Senate Floor Support: Golden State Bail Agents Association; California Attorneys for Criminal Justice; Peace Officers Research Association of California; Taxpayers for Improving Public Safety Opposition:Aladdin Bail Bonds Assembly Floor Vote: Ayes 77 - Noes 0 KEY ISSUE IN SETTING THE AMOUNT OF BAIL, SHOULD A COURT BE AUTHORIZED TO CONSIDER THE REPORT CONCERNING WHETHER OR NOT THE DEFENDANT SHOULD BE RELEASED ON HIS OR HER OWN RECOGNIZANCE? (More) AB 805 (Jones-Sawyer) PageB PURPOSE The purpose of this bill is to provide that a judge or magistrate may consider the report prepared by investigative staff for the purpose of recommending whether or not a defendant should be released on his or her own recognizance. Existing law provides that in setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration. (Pen. Code § 1275, subd. (a).) Existing law provides that in considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant. (Pen. Code § 1275, subd. (a).) Existing law provides in considering specified offenses involving controlled substances, the judge or magistrate shall consider the following: the alleged amounts of controlled substances involved in the commission of the offense; and, whether the defendant is currently released on bail for one of the specified offenses involving controlled substances. (Pen. Code § 1275, subd. (b).) Existing law provides that before a court reduces bail below the amount established by the bail schedule approved for the county for a person charged with a serious felony listed in subdivision (c) of Penal Code Section 1192.7, or a violent felony listed in (More) AB 805 (Jones-Sawyer) PageC subdivision (c) of Penal Code Section 667.5, the court shall make a finding of unusual circumstances and set forth those facts on the record. For purposes of this subdivision, "unusual circumstances" does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses. (Pen. Code § 1275, subd. (c).) Existing law authorizes a court, with the concurrence of the board of supervisors, to employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognize (OR). (Pen. Code § 1318.1, subd. (a).) Existing law states that whenever a court has employed investigative staff for the purpose of recommending whether a defendant should be released on OR, an investigative report shall be prepared in all cases involved a violent felony listed in subdivision (c) of Penal Code Section 667.5, or a felony violation of driving under the influence and causing bodily injury to another person, recommending whether the defendant should be released on OR. The report shall include all of the following: written verification of any outstanding warrants against the defendant; written verification of any prior incidents where the defendant has failed to make a court appearance; written verification of the criminal record of the defendant; and written verification of the residence of the defendant during the past year. (Pen. Code § 1318.1, subd. (b).) Existing law provides that any person released on bail who is charged with or convicted of a felony who thereafter willfully (More) AB 805 (Jones-Sawyer) PageD fails to appear is guilty of an alternate felony-misdemeanor<1> and shall be punished by a fine not to exceed ten thousand dollars ($10,000), or by imprisonment pursuant to Penal Code Section 1170, subdivision (h), or by imprisonment in the county jail for not more than one year, or by both the fine and imprisonment. (Pen. Code § 1320.5.) Existing law provides that numerous, specified felonies are punishable by a term of imprisonment in county jail - not prison - unless the crime of conviction or the defendant's criminal history makes the defendant ineligible for serving his or her felony sentence in jail. (Pen. Code § 1170 subd. (h).) Existing law provides, however, that certain felons are categorically prohibited from serving an executed felony sentence in county jail. These include the following persons: The defendant has a prior or current felony conviction for: o a serious felony described in subdivision (c) of Section 1192.7, or o a violent felony described in subdivision (c) of Section 667.5; The defendant has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious or violent felony in California, as specified; The defendant is required to register as a sex offender; or The defendant is convicted of a crime and as part of the sentence receives an aggravated while collar crime enhancement, as specified. (Pen. Code § 1170, subd. (h)(3).) This bill provides that in setting bail, a judge or magistrate may consider the report prepared by investigative staff for the purpose of recommending whether a defendant should be released --------------------------- <1> Penal Code Section 1320.5 states that willful failure to appear in a felony matter is a felony. However, the actual punishment provision describes an alternate felony-misdemeanor. (More) AB 805 (Jones-Sawyer) PageE on his or her own recognizance. 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 part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, (More) AB 805 (Jones-Sawyer) PageF 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: (More) AB 805 (Jones-Sawyer) PageG There is confusion as to whether risk assessment reports can only be used to determine a defendant's suitability for release on their own recognizance (OR) in non-felony cases. Bail and OR are both forms of pretrial release and while bail is a more secure form of pretrial release, all forms of pretrial release are concerned with the same risk factors, e.g. the risk of the defendants failing to appear in court and/or reoffending while on pretrial release. AB 805 clarifies that judges may use risk assessment reports in setting, reducing or denying bail 2. Background About Bail Statutory law provides a process whereby the court may set a bail amount for a criminal defendant. (Pen. Code § 1269b.) Additionally, Section 12 of Article 1 of the California Constitution provides, with limited exceptions, that a criminal defendant has a right to bail and what conditions shall be taken into consideration in setting bail. A defendant may post bail by depositing cash or an equivalent form of currency, provide a security in real property, or undertake bail using a bail bond. The bail bond is the most likely means by which a person posts bail. A bail bond is essentially a contract that provides the court with a guarantee that the defendant will appear for a hearing or trial. A defendant pays a licensed bail agent a percentage of the total amount of bail ordered as a non-refundable fee - often an amount in the range of 10%. The bail agent then contracts with a surety company to issue a bail bond - essentially, an insurance policy. The bond is issued providing that if the defendant fails to appear, the county will receive the full amount of bail set by the court. The bond is provided to the court and, if accepted, the defendant is released. As designed, the bail system often allows the court to rely on the private sector to ensure appearances and provide a means for the county to be made whole in the event that a person fails to appear. (More) AB 805 (Jones-Sawyer) PageH While the main purpose of a bail bond is to provide some assurance that a defendant will return to court to resolve the pending charges, courts also consider the danger a released defendant will pose to the public or specific persons. Bail is set through a bail schedule that lists preset amounts of bail for various crimes. A committee of judges in each county promulgates the bail schedule for that county. (Pen. Code § 1269b, subd. (c).) A defendant or the prosecution can move the judge presiding over a particular case to raise or lower the amount of bail, or the defendant can request release on his or her own recognizance. (Pen. Code § 1275.) Additional statutory rules apply if the defendant is charged with a serious felony or domestic violence. (Pen. Code § 1270.1.) (More) 3. Reports Concerning Own Recognizance Release In cases where the defendant is likely to return to court and where the safety of the public or specific persons will not be put at risk, a court can release someone on his or her own recognizance (OR). An OR release is essentially release without payment of bail pending trial or other resolution of a criminal case. Defendants who cannot afford bail and who do not obtain an OR release will remain in custody pending trial, regardless of whether they would return to court or present a danger to others. Existing law authorizes a court, with approval of the board of supervisors, to employ a staff to recommend whether or not to grant a defendant an OR release. The governing statute directs the investigate staff to research and present to the court whether the defendant has any outstanding warrants, his or her prior failures to appear in court, criminal record and residence. While these matters must be included in the report, the report will likely include the defendant's ties to the community, including employment, educational program and numerous other matters. Unlike decisions on bail, the court has a neutral and objective report to consider in granting or denying an OR release. Hearings to set, decrease or increase bail are often adversarial hearings where the defense counsel and the prosecutor make very different claims as to the amount of bail that is reasonable or necessary. While the arguments of defense counsel and the prosecutor would not be eliminated under this bill, the court would have an additional source of information to consider in setting bail. Further, once the court sets bail, the bail agent can do his or her investigation of the risk of providing the defendant with a bond. It appears that the subjects considered in an OR investigative report are relevant to decisions concerning bail. A defendant with strong ties to the community and with little or no criminal record may be a good candidate for reduced bail. The court may wish to set higher bail for a person with a long criminal history and few ties to the community. (More) AB 805 (Jones-Sawyer) PageJ SHOULD REPORTS CONCERNING A DEFENDANT'S POTENTIAL RELEASE ON HIS OR HER OWN RECOGNIZANCE BE AVAILABLE TO A COURT IN SETTING BAIL? 4. Argument in Support According to Golden State Bail Agents Association (GSBAA): GSBAA supports AB 805 because it clarifies that judges can use risk assessment reports in setting, reducing or denying bail. Currently, there is confusion as to whether these risk assessment reports can only be used to determine a defendant's suitability for release on his or her own recognizance (OR). Bail and OR are both forms of pretrial release and while bail is a more secure form of pretrial release, all forms of pretrial release are concerned with the same risk factors, e.g. the risk of the defendant failing to appear in court and/or reoffending while on pretrial release. 5. Argument in Opposition According to Aladdin Bail Bonds: [W]e must oppose . . . AB 805, as it is premised on the false assumption that pretrial service programs are effective. As a result, your bill will create a serious public safety threat if judges rely on pretrial service reports in setting or reducing bail. The simple fact is that bail works. It is by far the most effective mechanism for ensuring that defendants return to court so that criminal justice system can work efficiently. And best of all, it is absolutely free to taxpayers. Moreover, the investigation and underwriting process used by reputable companies in the bail industry helps to prevent violent tragedies . . . Before writing bail bonds for defendants, bail companies establish a network of involved and caring family members and friends, all of whom work together with the bail agent to ensure the defendant not only AB 805 (Jones-Sawyer) PageK returns to court, but does not reoffend in the interim. 6. Jail Population Issues A report from the Public Policy Institute of California found that in December of 2011 approximately 65% of jail inmates were awaiting trial or other resolution of their cases.<2> After realignment counties must find room in jail for sentenced felons, including counties with crowded jails. The two main ways that counties manage the population of pre-trial and pre-sentence inmates are to grant release on bail or release on OR. As noted in Comment # 3 above, this bill could give judges who set bail additional information from a neutral source about a defendant seeking release. Judges could then perhaps make better decisions about bail, including thorough consideration of matters other than the crime charged against the defendant thus giving the courts and counties more control over jail populations and reducing the number of defendants who will abscond and face additional imprisonment for the crime of failing to appear. *************** --------------------------- <2> http://www.ppic.org/main/publication_quick.asp?i=1034.