BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1118 (Hagman) 8
As Amended May 24, 2013
Hearing date: July 2, 2013
Penal Code
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STATEWIDE BAIL SCHEDULE
HISTORY
Source: Author
Prior Legislation: SB 1049 (Harman) - Ch. 176, Stats. 2010
Support: Greg Padilla Bail Bonds
Opposition:California Judges Association; California Judicial
Council; California District Attorneys Association;
Taxpayers for Improving Public Safety; Chief Probation
Officers of California
Assembly Floor Vote: Ayes 72 - Noes 0
KEY ISSUE
SHOULD THE JUDICIAL COUNCIL DRAFT AN ADVISORY STATEWIDE BAIL
SCHEDULE?
PURPOSE
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The purpose of this bill is to direct the Judicial Council to
draft and publish an advisory statewide bail schedule that would
stand as a model for each county superior court that, by current
statute, must draft a bail schedule.
Existing law states that it is the duty of the superior court
judges in each county to prepare, adopt, and annually revise a
uniform countywide schedule of bail for all bailable felony
offenses and for all misdemeanor and infraction offenses except
Vehicle Code infractions. The penalty schedule for infraction
violations of the Vehicle Code shall be established by the
Judicial Council. (Pen. Code § 1269b, subd. (c).)
Existing law allows a court, by local rule, to prescribe the
procedure by which the uniform countywide schedule of bail is
prepared, adopted, and annually revised by the judges. If a
court does not adopt a local rule, the uniform countywide
schedule of bail shall be prepared, adopted, and annually
revised by a majority of the judges. (Pen. Code § 1269b, subd.
(d).)
Existing law provides in adopting a uniform countywide schedule
of bail for all bailable felony offenses the judges shall
consider the seriousness of the offense charged. In considering
the seriousness of the offense charged, the judges shall assign
an additional amount of required bail for each aggravating or
enhancing factor chargeable in the complaint. In considering
offenses in which a violation of a controlled substance offense
is alleged, the judge shall assign an additional amount of
required bail for offenses involving large quantities of
controlled substances. (Pen. Code § 1269b, subd. (e).)
Existing law requires the countywide bail schedule to contain a
list of the offenses and the amounts of bail applicable for each
as the judges determine to be appropriate. If the schedule does
not list all offenses specifically, it shall contain a general
clause for designated amounts of bail as the judges of the
county determine to be appropriate for all the offenses not
specifically listed in the schedule. A copy of the countywide
bail schedule shall be sent to the officer in charge of the
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county jail, to the officer in charge of each city jail within
the county, to each superior court judge and commissioner in the
county, and to the Judicial Council. (Pen. Code § 1269b, subd.
f).)
Existing law specifies if a defendant has appeared before a
judge of the court on the charge contained in the complaint,
indictment, or information, the bail shall be in the amount
fixed by the judge at the time of the appearance. If that
appearance has not been made, the bail shall be in the amount
fixed in the warrant of arrest or, if no warrant of arrest has
been issued, the amount of bail shall be pursuant to the uniform
countywide schedule of bail for the county in which the
defendant is required to appear, previously fixed and approved.
(Pen. Code § 1269b, subd. (b).)
Existing law requires the Judicial Council to annually adopt a
uniform traffic penalty schedule which shall be applicable to
all nonparking infractions specified in this code, unless in a
particular case before the court the judge or authorized hearing
officer specifies a different penalty. In establishing a
uniform traffic penalty schedule, the Judicial Council shall
classify the offenses into four or fewer penalty categories,
according to the severity of offenses, so as to permit
convenient notice and payment of the scheduled penalty. (Veh.
Code § 40310.)
Existing law prohibits excessive bail. (Cal. Const., art. I,
sec. 12.)
Existing law lists several factors that the court must consider
in setting, reducing, or denying bail: the protection of the
public, the seriousness of the charged offense, the defendant's
prior criminal record, and the probability of his or her
appearing at trial or hearing of the case. Public safety is the
primary consideration. (Pen. Code § 1275, subd. (a).)
This bill requires the Judicial Council, on or before January 1,
2015, to prepare, adopt, and annually revise a statewide bail
schedule for all bailable felony offenses and for all
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misdemeanor and infraction offenses except Vehicle Code
infractions.
This bill states that Judicial Council shall appoint a group of
judges, deemed by the Council sufficient to adequately represent
counties varying in size from throughout California, to develop
and approve the statewide bail schedule.
This bill requires Judicial Council to consult with the
following representatives in preparing, adopting, and annually
revising the statewide bail schedule:
a representative appointed by the California District
Attorneys Association;
a representative appointed by the California Public
Defenders Association;
a representative appointed by the California Attorneys
for Criminal Justice;
a representative appointed by the California State
Sheriffs' Association; and,
interested parties other than the specifically noted
entities.
This bill specifies in adopting the statewide bail schedule for
all bailable felony offenses, the Judicial Council shall
consider the seriousness of the offense charged. In considering
the seriousness of the offense charged, the Judicial Council
shall assign an additional amount of required bail for each
aggravating or enhancing factor chargeable in the complaint.
This bill specifies in considering controlled substances-related
offenses, the Judicial Council shall assign an additional amount
of required bail for offenses involving large quantities of
controlled substances.
This bill states that the statewide bail schedule shall contain
a list of the offenses and the amounts of bail applicable for
each as the Judicial Council determines to be appropriate. If
the schedule does not list all offenses specifically, it shall
contain a general clause for designated amounts of bail as the
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Judicial Council determines to be appropriate for all the
offenses not specifically listed in the schedule.
This bill provides that, commencing January 1, 2015, a court
adopting the countywide bail and penalty schedule shall consider
the statewide bail schedule prepared and adopted by the Judicial
Council.
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.
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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,
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;
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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:
Under existing law, each county's superior court is
charged with creating an annual bail schedule that
applies in that county. With each county creating its
own schedule, bail can vary significantly from one
county to another, creating unequal protection under
the law. For instance, the scheduled bail for the
felony of grand theft can range from $5,000 in Placer
County to $50,000 in San Bernardino County.
As has been seen in Southern California, when one
county raises the bail amounts the counties near them
often feel pressure to follow suit. When bail becomes
too high for defendants to pay, they stay in jail
until their court date. This causes overcrowded
conditions which necessitates release of defendants
prior to trial without any assurance they will appear
for their court date. In addition, if an individual
is released by posting bail, he or she is 60% more
likely to appear in court for hearings and trial.
This bill would require the Judicial Council to
prepare, adopt and annually revise an advisory
statewide bail schedule for all bailable felony,
misdemeanor, and infraction offenses. Vehicle Code
infractions are excluded.
2. Advisory Nature of a Statewide Bail Schedule Required by This
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Bill
According the author, the intent of this bill is to require
Judicial Council to draft and publish an advisory statewide bail
schedule. The statewide schedule would serve as a model or
template for the bail schedule that each county's superior court
must promulgate under existing law.
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The bill does not specify that the statewide schedule would be
advisory. As such, the bill could create issues of state
preemption. This issue is especially likely to arise where a
defendant fails to meet the bail set by a county schedule, but
where the statewide schedule calls for a lower bail.
A state law certainly preempts local laws where the state law
explicitly includes a preemption clause. Without an explicit
preemption, state law will be found to preempt local laws where
the state statute law fully occupies the field on the subject of
the law.
This bill does not include a preemption clause, but it does
require a comprehensive statewide bail schedule, which must be
based on a wide-range of relevant factors. The bill also does
not repeal the statutes currently requiring each county superior
court to draft a bail schedule for that county. The bill thus
does create a potential conflict that courts would be required
to resolve.
It is suggested that the bill be amended to specifically state
that the statewide bail schedule is advisory and that superior
court judges may consider the statewide schedule in preparing
the county bail schedule.
SHOULD THE BILL BE AMENDED TO SPECIFICALLY PROVIDE THAT THE
STATEWIDE BAIL SCHEDULE IS TO BE AN ADVISORY MODEL FOR EACH
COUNTY SUPERIOR COURT THAT MUST DRAFT A BAIL SCHEDULE?
3. Little Hoover Commission Report on Jail Overcrowding and Bail
for Pretrial Inmates
On May 30, 2013, the Little Hoover Commission issued a letter
report on bail and jail overcrowding after Criminal Justice
Realignment.<1> (Little Hoover Bail Letter Report - LHBL.) The
report noted that pretrial detainees make up 60% of jail
inmates. Many of these pretrial inmates are poor and cannot
afford bail. The sheriffs in 17 counties have released
convicted inmates to relieve jail overcrowding, often pursuant
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<1> http://www.lhc.ca.gov/studies/216/Report216.pdf.
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to a federal court order. (LHBL, p. 2.)
The report stated concerns because decisions on pretrial release
are typically made on gut instinct and past practice. Bail
decisions are not typically made through evidence-based
assessments that have been successfully implemented in other
states and that relatively accurately predict the future
criminal behavior of California prison inmates. The report
strongly recommended that California counties implement
evidence-based pretrial release practices and use pretrial
services. In Yolo County the cost per day of supervising
pretrial defendants in the community is $5, in contrast with
$120 per day for jailed inmates. (LHBL, p. 2.)
The report also recommended that the Legislature set criteria
for bail schedules to provide fairness and consideration of
common factors in setting bail. Bail amounts vary widely from
county to county, such as the bail for drug possession in being
$5,000 in San Diego County and $25,000 in Tulare County. While
acknowledging the need of counties to address local
circumstances, the report noted that even adjoining counties can
have widely different bail amounts for the same crimes. (LHBL,
p. 6.)
The report stopped short of recommending a statewide bail
schedule. The report, however, did "recommend that the state
establish objective criteria for bail schedules to ensure that
bail schedules are consistent in their aims statewide ?."
(LHBL, p. 6.)
Penal Code Section 1269b, subdivision (e), very generally
provides that the superior court judges setting the county bail
schedule shall consider the "seriousness of the offense
charged." However, Penal Code Section 1275 provides more
guidance for the court in setting, raising or reducing bail in
an individual case. The court shall consider the seriousness of
the offense, the criminal record of the defendant and the
likelihood the defendant will return to court, although public
safety is the primary consideration.
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It is likely that the judges who set the county bail schedules
consider the factors a court must consider when making bail
decisions in an individual case. As such, disparities in bail
schedules could still occur if the Legislature prescribed
uniform criteria for county bail schedules. An advisory bail
schedule could act as a model - demonstrating how relevant
criteria might affect bail amounts.
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