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
          JM:mc

                                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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                                                           AB 1118 (Hagman)
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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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                                                           AB 1118 (Hagman)
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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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                                                           AB 1118 (Hagman)
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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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                                                           AB 1118 (Hagman)
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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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                                                           AB 1118 (Hagman)
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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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                                                           AB 1118 (Hagman)
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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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                                                           AB 1118 (Hagman)
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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  


          ---------------------------
          <1> http://www.lhc.ca.gov/studies/216/Report216.pdf.



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                                                           AB 1118 (Hagman)
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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.













                                                           AB 1118 (Hagman)
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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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