BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 625 (Wright)
As Introduced February 27, 2009
Hearing date: April 28, 2009
Penal Code
JM:br
BAIL OR OWN RECOGNIZANCE RELEASE ;
CUSTODY HOLDS
HISTORY
Source: Author
Prior Legislation: SB 55 (Kopp) - Ch. 726, Stats. 1998
AB 728 (Bowler) - Ch. 34, Stats. 1997
AB 67 (Bowen) - Ch. 51, Stats. 1995
Support: American Federation of State County and Municipal
Employees (AFSME), AFL-CIO
Opposition:California Public Defenders Association; Coalition
for Humane Immigrant Rights of Los Angeles
( NOTE : THIS BILL IS ANALYZED AS PROPOSED TO BE AMENDED IN
COMMITTEE.)
KEY ISSUES
SHOULD THE STATUTES CONCERNING BAIL OR OWN RECOGNIZANCE RELEASE
INCLUDE CONSISTENT FACTORS COURTS WOULD BE REQUIRED TO CONSIDER?
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(CONTINUED)
BEFORE RELEASING A PERSON ON BAIL OR HIS OR HER OWN RECOGNIZANCE,
SHOULD THE SHERIFF BE REQUIRED TO MAKE REASONABLE EFFORTS TO
DETERMINE WHETHER OR NOT A HOLD, DETAINER OR WARRANT HAS BEEN PLACED
ON THE DEFENDANT BY ANOTHER JURISDICTION?
PURPOSE
The purpose of this bill is to 1) require courts to consider, as
specified, the following factors in setting bail or releasing a
person on his or her own recognizance ("OR"): the defendant's
ties to the community, his or her history of appearing in court,
the sentence facing the defendant upon conviction, and whether
bail or OR release would provide reasonable assurance of the
defendant's future appearance and public safety; and 2) require
that, before releasing a person on bail or OR pursuant to court
order, the sheriff shall make all reasonable efforts to
determine whether or not a hold, detainer or warrant has been
placed on the person that would prevent release.
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 provisions of the California Constitution 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
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bodily harm and that there is a substantial likelihood that
the person would carry out the threat if released.
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 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 appearing at trial or hearing of the
case. The public safety shall be the primary consideration. 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 (a).)
Existing law provides that the superior court in each county
shall adopt a "uniform schedule of bail" for all felony offenses
and for all misdemeanor and infraction offenses except Vehicle
Code infractions. The judges shall consider the seriousness of
the offense, including enhancements and aggravating factors that
may be charged in the complaint. (Pen. Code 1269b (c)-(e).)
Existing law provides that any person arrested for, or charged
with, an offense other than a capital offense may be released
on his or her own recognizance or "OR" by a court or magistrate
who could release a defendant from custody upon the defendant
giving bail. (Penal Code 1270.)
Existing law provides that before any person arrested for a
serious or violent felony, except residential burglary, spousal
rape, stalking, inflicting corporal injury on a spouse, battery
on a spouse, dissuading a witness, or criminal threats to
inflict death or great bodily injury may be released on bail in
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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 includes the (interstate) agreement on detainers
under which states, including California, agree to abide by
specified procedures for the lodging of detainers (orders to
hold a prisoner) and return of the prisoner, pursuant to the
prisoner's demand, for resolution of charges pending in another
jurisdiction. The federal government is part of the interstate
agreement. Upon request, the warden or official having custody
of the prisoner shall inform the prisoner of any detainer
pending against the prisoner. (Pen. Code 1389 et seq.)
Existing law allows law enforcement agencies, upon the issuance
of any arrest warrant, to enter the warrant information in the
Department of Justice's ("DOJ") Wanted Persons System. (Pen.
Code 817.5.)
Existing law requires any state or local government agency, upon
request, to provide DOJ, a court, or any California law
enforcement agency with the address of any person for whom there
is an outstanding arrest warrant. (Pen. Code 817.5.)
This bill provides that in setting bail or determining whether
or not to release a defendant on his or her own recognizance,
the court shall consider a consistent list of factors, including
his or her prior history of appearing at court hearings, the
sentence that can be imposed in the case, the defendant's ties
to the community, public safety and whether or not bail or the
terms of own recognizance release would provide reasonable
assurance that the defendant would return to court for future
proceedings.
This bill provides in particular that these factors shall be
considered in determining whether or not to release a defendant
from jail on his or her own recognizance in the following
circumstances: pending appeal; pending resolution of serious and
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violent felonies, domestic violence and similar offenses, and in
other felony matters.
This bill , as proposed to be amended in Committee, would provide
that before a sheriff releases a person from jail on bail or on
the person's own recognizance, the sheriff shall make reasonable
efforts to determine whether or not a hold has been placed on
the person by another jurisdiction.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .Under the PLRA, any prisoner release order that
we issue will be narrowly drawn, extend no further
than necessary to correct the violation of
constitutional rights, and be the least intrusive
means necessary to correct the violation of those
rights. For this reason, it is our present intention
to adopt an order requiring the State to develop a
plan to reduce the prison population to 120% or 145%
of the prison's design capacity (or somewhere in
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between) within a period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Background Information
Concerns have been raised about the commission of crimes by
persons released from jail on bail or own recognizance ("OR")
release. Some of these defendants may have a serious history of
violent offenses and be wanted in other jurisdictions. A
parole, probation or immigration hold, or a detainer may be
pending against a person held in a county jail. The jail inmate
may be the subject of arrest warrants for serious offenses.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
This bill would require the sheriff, before releasing a jail
inmate on bail or his or her own recognizance, to make all
reasonable efforts to determine whether a hold, detainer or
warrant has been lodged with the jail for the inmate. The
intent of the author is to prevent dangerous persons from
slipping through the cracks of the jail system. Where a jail
inmate who faces a prison term, return to custody in another
state, or prosecution on another case, is released on bail or OR
from jail, the inmate may be particularly dangerous because of
the consequences he or she faces upon arrest. Arguably,
sheriffs should make all reasonable efforts to determine whether
or not the person should be held because a hold, detainer or
warrant for person has been lodged with the sheriff in control
of the jail.
BEFORE RELEASING A PERSON FROM JAIL ON BAIL OR THE PERSON'S OWN
RECOGNIZANCE, SHOULD A SHERIFF BE REQUIRED TO MAKE ALL
REASONABLE EFFORTS TO DETERMINE WHETHER OR NOT A HOLD, DETAINER
OR WARRANT HAS BEEN LODGED WITH THE JAIL FOR THE PERSON WHO
WOULD OTHERWISE BE RELEASED?
2. The Bill Places in Statute Factors Now Considered by Courts in
Setting Bail or Releasing a Defendant from Jail on His or Her
Own Recognizance
Existing law generally provides that the court shall consider
the safety of the public and whether or not the defendant will
appear in court for future proceedings in setting bail or
releasing a defendant on his or her own recognizance ("OR").
Various bail and OR release provisions include more detailed
examples of these general factors. This bill essentially makes
all of the bail and OR provisions relatively consistent as
concerns the factors the court must consider. In particular,
pursuant to this bill, bail and OR sections would direct courts
to consider a number of specific factors, including the
defendant's ties to the community, the defendant's past record
of appearing in court, or not, the maximum sentence that could
be imposed, and what would reasonably assure the defendant's
return to court.
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Arguably, this bill simply sets out specific factors that are
encompassed in the more general considerations or directives in
existing law. That is, a defendant's ties to the community, his
or her prior record of appearing at court and the sentence the
defendant faces are specific examples of factors that would
indicate whether or not a defendant would return to court.
Arguably, however, this bill provides consistency and
predictability for courts, defendants, prosecutors and
interested persons in bail and OR release determinations and
reviews of such determinations.
DOES THIS BILL, IN SPECIFYING CERTAIN FACTORS A COURT SHALL
CONSIDER IN SETTING BAIL OR DETERMINING WHETHER TO RELEASE A
DEFENDANT ON HIS OR HER OWN RECOGNIZANCE, ESSENTIALLY LIST
FACTORS A COURT WOULD BE EXPECTED TO CONSIDER UNDER THE GENERAL
CONSIDERATIONS OF PUBLIC SAFETY AND ASSURING THE DEFENDANT'S
RETURN TO COURT?
DOES THIS BILL PROVIDE A CONSISTENT APPROACH THROUGHOUT VARIOUS
STATUTES TO DETERMINATIONS ABOUT BAIL AND OWN RECOGNIZANCE
RELEASE?
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