BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SCA 13 Hearing Date: June 14, 2016
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|Author: |Nguyen |
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|Version: |May 16, 2016 |
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|Urgency: | |Fiscal: |No |
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|Consultant:|JM |
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Subject: Bail: Risk of Flight Exception
HISTORY
Source: Orange County District Attorney
Prior Legislation:None directly on point
Support: Unknown
Opposition:Golden State Bail Agents Association
PURPOSE
The purpose of this proposed constitutional amendment is to
prohibit bail in cases in which the defendant is charged with a
sex crime against a minor and there is high likelihood that the
defendant would abscond if granted bail, despite any conditions
of release.
Existing law states that bail permits a defendant to be released
from custody by posting bond, which is a promise to pay the bond
amount unless the defendant meets the conditions, which is
generally to make all of their court appearances. (Pen. Code, §
1269.)
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Existing California Constitutional provisions state that a
person shall be released on bail, except for the following
crimes when the facts are evident or the presumption great:
Capital crimes;
Felonies involving violence or sexual assault when 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. (Cal.
Const., Art. I, § 12, subds.(a)-(c).)
Existing California Constitutional provisions provide that the
court, in setting bail, shall consider the seriousness of the
offense, the defendant's criminal record, and the probability of
his or her return to court. The court, in its discretion, may
release a person on his or her own recognizance. (Cal. Const.,
Art. I, § 12.)
Existing law 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
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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. (Pen. Code §
1269c.)
Existing law provides that before any person arrested for a
serious or violent felony (except residential burglary<1>),
spousal rape, stalking, inflicting corporal injury on or
battering a cohabitant, as specified, dissuading a witness, or
criminal threats 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 own recognizance
("OR"), a hearing must be held in open court before the
magistrate or judge. (Pen. Code § 1270.1 (a).)
Existing law provides that bail is set by the magistrate at the
defendant's first court appearance. (Cal. Const. art. I,
section 12; Pen. Code, § 1271.)
Existing 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 considering the
seriousness of the offense, the court shall consider the alleged
injury to the victim, threats to the victim or a witness, use of
a firearm or weapon and the use or possession of controlled
substances by the defendant. (Pen. Code § 1275, subd. (a).)
Existing law states that judges fix the bail amount according to
a countywide schedule which sets bail amounts according to the
offense charged. (Pen. Code, § 1269b, subd. (c).)
Existing law allows judges to adjust the bail up or down from
the fee schedule when certain conditions exist, but public
safety is the primary concern. (Pen. Code, § 1268, 1269c, 1275,
1289.)
Existing law permits judges to attach conditions on bail which,
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<1> All violent felonies (Pen. Code §667.5, subd. (c) are also
serious felonies (Pen. Code §1192.7. subd. (c). For purposes of
this analysis, a reference to serious felonies includes violent
felonies.
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if violated, can result in forfeiture of the bail. (Pen. Code,
§ 1269c)
Existing law states that defendants forfeit their bail when they
abscond, i.e. when the defendant fails to appear for their court
hearing without a valid excuse. (Pen. Code, § 1275, 1305.)
Existing law allows judges to adjust the bail up or down from
the fee schedule when certain conditions exist, but public
safety is the primary concern. (Pen. Code, § 1268, 1269c, 1275,
1289.)
Existing law permits judges to attach conditions on bail which,
if violated, can result in forfeiture of the bail. (Pen. Code,
§ 1269c)
Existing law states that defendants forfeit their bail when the
defendant fails to appear for a court hearing without a valid
excuse. (Pen. Code, § 1275, 1305.)
Existing law requires a person convicted of enumerated sex
offenses and sexually-related human trafficking crimes to
register within five working days of coming into a city or
county, with law enforcement officials, as specified. (Pen.
Code § 290.)
Existing law grants a sentencing court discretion to order a
person convicted of any crime committed out of "sexual
compulsion" or for sexual gratification to register as a sex
offender. (Pen. Code § 290.006)
This bill prohibits release on bail under the following
circumstances:
The defendant has been charged with a "felony sexual
assault" against a minor "and other sex offenses described
in the Sex Offender Registration Act when committed against
a minor including, but not limited to, any of the
following" offenses:
A. Oral copulation.
B. Lewd and lascivious acts with a minor or who is
under 14 years of age
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C. Arranging a meeting with a minor or a person
he or she believes to be a minor for the purpose of
engaging in lewd or lascivious behavior, including,
but not limited to, engaging in sexual conduct with,
or in the presence of, that minor.
D. An attempt to commit an act described in
subparagraphs A through C
The facts are evident and or the presumption great and
the court finds by a preponderance of the evidence that
"there is a substantial likelihood the person will flee" if
released and "no condition or combination of conditions"
will ensure the person's return to court.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
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2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
Senate Constitutional Amendment 13 is in response to
the case of Minh Beo, an entertainer from Vietnam who
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was arrested on March 24, 2016 for molesting a
child under 14 while recruiting for a talent show in
Huntington Beach. Minh Beo has a close relationship
with the Vietnamese Government, creating a concern
that he might avoid prosecution if released on bail
and the Vietnamese government grants him a new visa.
The California Constitution guarantees the pretrial
right to be released from custody on non-excessive
bail. (Cal. Const. art. I, 12.) Penal Code section
1271 implements this constitutional provision,
providing generally that a defendant "may be admitted
to bail before conviction, as a matter of right."
(Cal. Pen. Code, § 1271.) There are three exceptions
to the constitutional right to bail in California, one
for capital offenses and two premised upon public
safety. (Cal. Const. art. I, § 12(a)-(c).) A defendant
charged with a capital offense cannot be admitted to
bail when proof of guilt is evident or the presumption
thereof is great. (Cal. Const. art. I, § 12(a); see
also, Cal. Pen. Code, § 1270.5.) Bail may be denied
in certain noncapital cases where the court finds a
substantial likelihood of harm to others if the
defendant were to be released. When the facts are
evident or the presumption of guilt is great, bail may
be denied in a felony cases that either: 1) involve an
"act of violence on another person, or felony sexual
assault offenses on another person?and the court finds
based upon clear and convincing evidence that there is
a substantial likelihood the person's release would
result in great bodily harm to others;" or 2) where
"the court finds based on 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." (Cal. Const. art. I, § 12(b) & (c).)
Presently, the California Constitution does not
provide an exemption from the right to bail on the
basis of a defendant's risk of flight if released.
Such pretrial detention authority does, however, exist
in federal law and has repeatedly survived
constitutional challenge.
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The federal Bail Reform Act of 1984 provides that a
court may detain a defendant pending trial if there
exists "[a] serious risk that the person will flee?"
and "no condition or combination of conditions will
reasonably assure the appearance of the person as
required?" (18 U.S.C. § 3142(e)-(f).) Pretrial
detention under such circumstances has been upheld as
constitutional under the 8th Amendment. (United States
v. Winsor (9th Cir. 1986) 785 F.2d 755, 756; United
States v. Acevedo-Ramos (1st Cir. 1985) 755 F.2d 203,
206 ["Where risk of flight is unusually great, a court
may deny bail and keep a defendant in custody in order
to insure that the trial will take place."]; Numerous
other cases are in accord.
As amended, SCA 13 would add flight risk to the
exemption to the right of bail under the California
Constitution when the defendant is accused of a sex
crime against a minor.
2.Very Broad Reach of the Bail Prohibitions in this Bill,
Including Defendants Charged with Misdemeanors
The bill applies to a wide range of offenses, including, it
appears, misdemeanors. Although the bill uses the term "sexual
assault offenses," that term is not defined.<2> Penal Code
Section 220 defines the crime of assault with intent to commit
mayhem or a specified sex crime. The penalty for assault with
assault to commit a sex crime is greater if the victim is a
minor. However, if the intent of the author is to include
violations of Penal Code Section 220, that could have been
stated. The bill also specifically includes "other sex
offenses described in the Sex Offender Registration Act when
committed against a minor?" Arguably, the reference to any
"sexual assault" is superfluous, although such a statutory
interpretation is disfavored and courts must presume that words
in a statute have meaning.
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<2> An assault is generally defined as engaging in conduct that
a reasonable person would be aware would directly, naturally and
probably cause a battery of another person. (People v. Williams
(2001) 26 Cal.4th 779, 786.
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It appears that this bill would include virtually all sexual
offenses against minors, including misdemeanors. Existing bail
prohibitions specifically refer to "felony offenses." This bill
only specifically refers to "felony sexual assault." The
reference to any other offense against a minor for which sex
offender registration is required is not modified or described
as any felony sex offense. The bill specifically refers to
"oral copulation" of or with a minor, a crime that includes
misdemeanors. Further, the bill also specifically includes
"arranging a meeting with a minor or a person he believes is a
minor" for sexual purposes. This provision reads as a summary or
description of the crime defined in Penal Code Section 288.4.
It is a misdemeanor unless the defendant has been convicted of
the offense before or actually goes to the place where the
meeting was to occur. Thus, it is unlikely that courts would
find that the bill applies only to felonies.
The bill likely excludes unlawful sexual intercourse, as
registration is not required under Penal Code Section 290 for
that crime.<3> (Johnson v. Dept. of Justice (2015) 60 Cal.4th
871.) However, as "felony sexual assault" is not defined, a
prosecutor could argue the unlawful sexual intercourse could be
covered by the bill. Crimes covered by this appear to include
charges of oral copulation, sodomy, or sexual penetration
involving a 17 year old minor and an 18 year old adult. If the
minor is under the age of 16 and the perpetrator over the age of
21, these crimes are straight felonies, otherwise the offenses
are wobblers.
In a rather anomalous provision, the bill does not include a
bail prohibition for any attempt to commit a sex crime other
than the enumerated crimes. An attempted sodomy, sexual
penetration or rape could be a more egregious than an attempt to
commit felony oral copulation, especially in a case involving
violence or threatened violence. This provision is difficult to
interpret, as an attempt to commit a crime for which
registration is required is an offense for which a convicted
defendant must register. However, the specific references to
attempts to commit the specifically described crimes could well
be interpreted to exempt other attempted sex crimes from the
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<3> A court can order a defendant convicted of crime not listed
in Section 290 to register as a sex offender if the crimes was
committed for sexual gratification. (Pen. Code § 290.006.)
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bill.
The bill was prompted by concern that a defendant in Orange
County with connections in the Government of Vietnam could
permanently flee the United States if granted bail of any
amount. The defendant has been charged with lewd conduct with a
child under the age of 14. This crime is a felony, with a
sentencing triad of 3, 6 or years and a triad of 5, 8 or 10
years if any force or coercion is used to commit the crime.
Numerous sentencing enhancement apply that can require various
life sentences. Members of the Committee may wish to consider
whether the amendment to the California Constitution proposed by
this measure could be limited to cases similar or equivalent to
the case that prompted introduction of the measure.
COULD THIS MEASURE BE LIMITED TO CHARGES OF EGREGIOUS FELONY
OFFENSES AGAINST MINORS, SIMILAR TO THE CASE THAT PROMPTED
INTRODUCTION OF THIS MEASURE?
3.Constitutional Provisions and Statutes Regulating Release on
Bail
Many statutes regulate a magistrate or court's power and
discretion to set bail and impose conditions of release. For
example, a hearing in open court is required to depart up or
down from the published bail schedule where the defendant is
charged with a serious felony. (Pen. Code §1270.1) Penal Code
Section 1269c authorizes a law enforcement officer, pursuant to
an affidavit or declaration, to obtain a court order to raise
bail for a defense arrested for domestic violence if the bail
set in the bail schedule is "insufficient to assure protection
of the victim" or others close to the victim. It does not
appear that courts have ignored these statutes or that they have
been ineffective in protecting the public and ensuring that
defendants return to court.
A constitution enumerates the rights, duties and powers of
citizens and the three branches of the government. The right to
be free from excessive bail was included in the 8th Amendment to
the United States Constitution when the Bill of Rights was
enacted in 1791. The bail provisions in the 8th Amendment were
drawn from the English Bill of Rights of 1689, although bail had
been available under English law for centuries prior to 1689.
Bail - and the more general right to pretrial release - was
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believed to be essential to effectuate the presumption of
innocence by allowing an accused to prepare his defense.
(Congressional Research Service, Annotated U.S. Constitution,
2000 supplement.)
In contrast with the federal constitution, the California
Constitution includes a right to bail, per se, with specified
and limited exceptions. Thus, it appears that any outright
prohibition on bail for any offense would have to be included in
the California Constitution.
4.Abbreviated History 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
defendant is said to be in the constructive custody of the bail
agent. (Taylor v. Taintor (1862) (16 Wall.) 83U.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.) However,
it appears that bail in England was typically posted in the form
of pledges of land or property by the defendant personally or by
a relative. Commercial bail - bail posted by private businesses
for profit - was an innovation of the American frontier in the
early 1880s. (Illegal Globally, Bail for Profit Remains in
U.S., Liptak, New York Times, Jan. 29, 2008.)
5.Current Bail Law and Practice in California
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. Statutory law
describes and governs the process whereby the court sets bail
for a criminal defendant. (Pen. Code § 1269b.)
The bail bond is the most common form of posting 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
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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.
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.)
6.Bail Forfeiture
A defendant forfeits the bail they posted when they fail to
appear in court or when they do not fulfill the conditions of
their bail, such as committing another offense or intimidating
witnesses in their case. A motion to vacate forfeiture of bail
is simply a motion to seeking a court order to forfeit the bail
posted by the defendant. These motions are filed either by
defense counsel or the bond surety agent in order to recover the
bail funds they posted. When defense counsel, or a surety
agent, files a motion to vacate forfeiture of bail, a
prosecuting attorney has the option to contest the motion.
7.Issues About Money Bail Generally
The United States is one of the few countries in the world that
still use money bail. Concerns have been raised in recent years
about the great number of defendants who are held in jail
throughout the pretrial or pre-plea period because they cannot
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afford bail. The high number of inmates awaiting resolution of
their cases leaves limited space for defendants serving executed
sentences for misdemeanor convictions and felony sentences
imposed pursuant to Penal Code Section (h) - criminal justice
realignment. According to a July 2015 report by the Public
Policy Institute of California, over 60% of inmates are awaiting
resolution of their cases or sentencing.
(http://www.ppic.org/main/publication_quick.asp?i=1154.)
This bill would include a new provision in the California
Constitution directing courts to deny bail if the defendant has
been charged with a sex crime against a child and there is a
great likelihood that the defendant will flee. It can be argued
that this bill could be included in a system where pretrial
release decisions are based on comprehensive evaluation of each
defendant's risk to flee and endanger the public. Such systems
would also require monitoring of each released person to ensure
that the defendant returns to court and to protect the public.
Under the money bail system, the financial interest of the bail
agent creates a strong incentive for the agent to bring a
defendant back to court, even after the defendant initially
absconds.
A New York Times article noted that commercial bail has been
eliminated in only four jurisdictions in the United States -
Illinois, Kentucky, Oregon and Wisconsin. The article noted
that the American Bar Association has opined that commercial
bail discriminates against the poor and middle class, does
little to assure public safety and usurps decisions on release
that should be made by the courts. (Illegal Globally, Bail for
Profit Remains in U.S., Liptak, New York Times, Jan. 29, 2008.)
A prosecutor in Oregon stated that the bail industry was "rife
with corruption" but also noted that failures to appear
increased after commercial bail was eliminated. The story noted
that the financial incentive for bail agents to apprehend
clients and the relatively free hand given bail agents and
bounty hunters in arresting fugitive defendants often makes
bail agents particularly efficient in returning fugitives to
court.
February, 2011 study and policy paper on pretrial release
prepared by the International Association of Chiefs of Police
(IACP), in collaboration with the United States Department of
Justice and the Pretrial Justice Institute. The IACP paper
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argued that pretrial release decisions should be based on an
evaluation of risk. In particular, pretrial release decisions
should be made based on the danger the defendant presented to
the public and the likelihood the defendant would return to
court.
The study concluded that the setting of money bail was often
"haphazard." The amount of money bail set did not adequately
reflect or consider the danger the defendant presented to the
public. While bail amounts could be raised in response to risk,
too often dangerous defendants are released prior to trial
solely because they had the money to post bail. The paper noted
examples in which bail agents had posted relatively high-amount
bonds for dangerous defendants who had paid discounted premiums.
Thus, despite the fact that the amount of the bail bond was
significant, the value of the bond was not a barrier to the
defendant in gaining release.
The IAPC paper recommended adoption of publicly funded and
government-run pretrial release programs that evaluated and
supervised defendants through the pretrial process. The
programs should be consistent with the up-to-date research. The
IAPC paper found that pretrial release programs should include
the following features and purposes:
Ensure the safety of the public.
Supervise defendants awaiting trial.
Ensure that defendants return to court.
Reduce jail overcrowding, thereby wisely using public
funds.
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