BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1913 (Skinner) 3
As Amended June 27, 2012
Hearing date: July 3, 2012
Penal Code
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POST RELEASE SUPERVISION:
BAIL PENDING REVOCATION HEARING
HISTORY
Source: Aladdin Bail Bonds
Prior Legislation: None directly on point
Support: Golden State Bail Agents Association; American Bail
Coalition
Opposition:Chief Probation Officers of California; California
Probation, Parole and Correctional Association
Assembly Floor Vote: Ayes 71 - Noes 3
KEY ISSUE
SHOULD DEFENDANTS HELD IN CUSTODY PENDING A HEARING ON REVOCATION OF
POSTRELEASE COMMUNITY SUPERVISION BE AUTHORIZED TO MOVE THE COURT
FOR RELEASE ON BAIL?
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PURPOSE
The purpose of this bill is to allow a person on postrelease
community supervision who has been arrested and held in custody
pending hearing on a petition to revoke to move for release on
bail.
Major Bail Provisions in Existing Law
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 law provides for the licensing of bail agents by the
Insurance Commissioner. (Ins. Code � 1800 et seq.)
Existing provisions of the California Constitution state that a
person shall be granted release on bail, except for the
following crimes when the facts are evident or the presumption
great:
Capital crimes;
Felonies involving violence or sexual assault if 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.
In setting the amount of bail, the court shall consider
the seriousness of the offense, the defendant's record, and
the probability of his or her return to court. The court
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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 returning to court. Public safety
shall be the primary consideration in setting bail. In
considering the seriousness of the charge, the court shall
consider allegations concerning the following: injury to the
victim, threats to the victim or a witness, use of a firearm or
other deadly weapon, and 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 offenses except
Vehicle Code infractions. The judges shall consider the
seriousness of the offense, including enhancements and
aggravating factors. (Pen. Code � 1269b (c)-(e).)
Post Release Community Supervision
Existing law provides, effective October 1, 2011, that the
following classes of offenders are subject to parole under the
supervision of the Department of Corrections and Rehabilitation
(CDCR):
Defendants released after serving a term for a
serious or violent felony.
Inmates released after serving a life term under the
Three-Strikes Law.
High-risk sex offenders.
Persons subject to treatment on parole as mentally
disordered offenders.
Inmates subject to lifetime parole who were committed
to prison for a new offense after prior release on parole.
Sex offender registrants who were been committed prison
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for new offense after prior release on parole for a period
exceeding three years. (Pen. Code �� 3000.08, subds. (a)
and (c) and 3451(b).)
Existing law provides that offenders not subject to parole are
to be released from custody on postrelease community supervision
(PRCS). These offenders are subject to up to three years of
local supervision. (Pen. Code �� 3000.08, subd. (b), and 3451,
subd. (a).)
Existing law sets out mandatory conditions of release, much like
probation conditions. (Pen. Code � 3453.)
Existing law provides for "intermediate" and "appropriate"
sanctions for violations of the terms of PRSC before PRCS is
revoked. The sanctions include "flash incarceration" for up to
10 days. (Pen. Code � 3454.)
Existing law provides that where the supervising county agency
(generally, the probation department) finds through an
assessment process that intermediate sanctions for a violation
or violations of release conditions are "not appropriate," the
agency shall file a petition to revoke PRCS. (Pen. Code � 3455,
subd. (a).)
Existing law provides that the supervising PRCS agency has the
authority to require that the defendant be held in custody
pending the revocation hearing. The decision to hold the
defendant shall be based on a determination that the defendant
poses an unreasonable risk to public safety, her or she may not
appear at the hearing if released, or for any other reason in
the interests of justice. (Pen. Code �3455, subd. (b).)
Existing law provides that the PRCS revocation hearing shall be
"held within a reasonable time" after the filing of the
petition. (Pen. Code �3455, subd. (b).)
Existing law provides that the superior court in each county, in
order to manage PRCS caseloads, may appoint hearing officers, as
specified, to rule on petitions for revocation of PRCS. (Gov.
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Code �71622.5.)
Existing law provides that the hearing officer may, upon finding
that the defendant has violated the terms of PRCS, do any the
following:
Return the defendant to PRCS, with modified conditions,
including a jail term.
Revoke PRCS and return the defendant to jail
Refer the defendant to reentry court (Pen. Code � 3015)
or other "evidence-based" program.
Jail terms may not exceed 180 days. (Pen. Code 3455,
subd. (a)(1)-(3).)
Existing law provides that where peace officer believes that a
defendant under PRCS has violated the terms of release, the
officer may bring the defendant to the supervising agency. An
officer employed by the supervising agency may seek an arrest
warrant for the defendant. (Pen. Code 3455, subd. (a)(4).)
Existing law provides that the court or hearing officer may
issue an arrest warrant for any PRCS defendant who does not
appear for hearing on the petition for revocation or for any
reason in the interests of justice. The court may, in the
interests of justice, remand into custody any defendant who
appears at the hearing. . (Pen. Code 3455, subd. (a)(5).)
Existing law provides that if PRCS is revoked, the hearing
officer can impose a county-jail sentence of up to 180 days, but
the offender cannot be returned to prison. (Pen. Code ��
3455(c) and 3458.)
This bill allows a person subject to postrelease community
supervision (PRCS) who has had a revocation petition filed
against him or her to make an application for bail in the
superior court, under the following terms:
Admittance to bail pending revocation of PRCS is within
the discretion of the court.
An application for bail for a person pending hearing on
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revocation of PRCS shall be governed by existing procedures
for the setting of bail.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
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Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
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COMMENTS
1. Need for This Bill
According to the author:
The bail procedures for individuals who violate the
terms of their postrelease community supervision are
unclear. The recent implementation of realignment has
significantly changed the landscape with respect to
custody and release of people convicted of crimes.
Many more people will be serving their sentences in
custody at the county jail rather than in state
prison. Moreover, local authorities and courts now
have primary responsibility for those released into
postrelease community supervision. All of this creates
pressure on the county for bed space because there is
an increased population of individuals awaiting court
proceedings to determine if they are going back to
jail.
2. The Abbreviated Sum and Substance 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.) 83 U.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.) These
measures include allowing a bail agent to arrest a fugitive in a
state other than where bail was issued. (Ibid.)
3. Likely Limited Application of This Bill
This bill specifically authorizes bail for a person who has been
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arrested after violating the terms of post- release community
supervision (PRSC). It appears that circumstances where release
on bail would be feasible would be limited.
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PRCS defendants who face a petition to revoke will very likely
be brought before a court quickly for a hearing. No jury trial
is required and, as with petitions to revoke probation or
parole, it appears that the violation need only be established
by a preponderance of evidence, not proof beyond a reasonable
doubt to a jury. The evidence is likely to be uncomplicated, as
serious violations would likely involve new criminal charges.
Under the PRSC statutes enacted as part of realignment,
probation officers are authorized, without the need for court
approval, to use intermediate sanctions, including graduated
flash-incarceration<1> for PRCS violations. Probation officers
are effectively directed to file for revocation of PRSC, and a
likely return to custody, only where intermediate sanctions are
not appropriate. (Pen. Code � 3454-3455.) Probation officers
are also directed to determine whether or not the defendant
shall be held in custody pending the hearing. Relevant factors
are public safety, the likely return of the defendant to court
for the hearing, or any other factors that serve the interests
of justice. (Pen. Code �3455, subd. (b).) These are the factors
a court would weigh in determining whether a defendant would be
released on bail.
Given that probation officers have exhausted intermediate
sanctions, it is very likely that a court could impose a
significant jail term upon revocation of PRCS. Further, where a
defendant has been held in custody pending the revocation
hearing, the probation department has determined that the
defendant either poses a risk to public safety or may not return
to court. (Pen. Code � 3454-3455.) In such cases, courts would
be reluctant to grant release on bail. Further, the revocation
hearing would be heard soon after the petition was filed and
would consider many of the two critical issues considered in the
bail hearing - the defendant's record and the seriousness of the
offense. As such, the bail hearing could well be seen as an
unnecessary and duplicative use of scarce judicial resources.
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<1> Flash incarceration generally means rapidly imposed
short-term jail sanctions for violations of conditional release
or a treatment program.
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WOULD THE AUTHORITY TO GRANT BAIL TO PERSONS HELD IN CUSTODY
PENDING A HEARING ON REVOCATION OF PSCS BE SELDOM EXERCISED?
4. Own Recognizance Release of Persons in Custody Pending Post
Release Community Supervision (PRCS) Revocation
This bill specifically states a person pending a hearing on
revocation of PRCS "may file an application for bail with the
superior court." A maxim of statutory interpretation provides
that the specific reference to one thing in a bill acts to
exclude others. It can be argued that the bill would not allow
own recognizance release (OR) in a PRCS revocation matter.
Nevertheless, the bill also provides that a bail application in
a PRCS matter shall be governed the procedures governing the
setting and granting of bail and OR in Penal Code sections 1268
and following. Penal Code section 1269 provides that court may
release a person on OR who could be released on bail. It can be
argued that this provision would allow a court to grant OR to a
person pending a PRCS revocation hearing. Penal Code section
1269 does specifically refer to a person "who has been arrested
for, or charged with, an offense?" While a person arrested for
violating a condition of PRCS would not have been directly
arrested for committing an offense, that offense underlies PRCS
supervision.
Further, it has been held a person held in custody pending a
parole revocation hearing may not be granted bail. (In re Law
(1973) 10 Cal.3d 21, 24-28.) Nevertheless, a person in custody
pending parole revocation is in very different position from a
person facing revocation of PRCS. The parole board, not the
court, has jurisdiction over a parole revocation matter. In a
PRCS case, the court determines whether or not PRCS should be
revoked and the person returned to custody. (Id, at p.26.)
At best, the bill is ambiguous concerning whether or not a court
could grant an OR release to a person pending PRCS revocation.
If the author intends to authorize a court to release a person
held in custody pending a hearing on revocation of PRCS on OR,
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the bill should specifically state that.
IS THE BILL INTENDED TO ALLOW A COURT TO RELEASE A PERSON HELD
IN CUSTODY PENDING A PRCS REVOCATION HEARING ON HIS OR HER OWN
RECOGNIZANCE?
SHOULD THE BILL BE AMENDED TO PROVIDE THAT AUTHORITY?
5. Argument in Support
According to sponsor Aladdin Bail Bonds:
This bill would only apply to felons who have
previously been convicted, have subsequently been
released from incarceration subject to certain
conditions, and have been accused of violating those
conditions. Since such felons have demonstrated that
they may not be able to comply with conditions of
release, trial courts may elect to return them to
custody. However, given the limited space in local
jails, allowing trial courts to permit some of these
felons to be released on bail will strike an
appropriate balance between public safety and the need
to manage jail populations. The bail industry has a
proven history of ensuring that the defendants for
whom they execute bail bonds are returned to court so
that the accusations against them can be promptly
adjudicated.
This bill will provide trial courts with another tool
to deal with the impacts of AB 109, and ensure that
communities are safe from felons who cannot comply
with the conditions of their release.
6. Argument in Opposition
According to the Chief Probation Officers of California (CPOC):
While we share the concerns �of the sponsor] as it
relates to available space in county jails, CPOC takes
into account that once an inmate has violated the
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conditions of their release, they have already
exhausted and taken all steps with regard to treatment
services and other rehabilitative resources available
to them. In this scenario revocation is the last
resort. In addition, the county agency responsible
for filing revocation is the probation department who
would now have to give notice to the District Attorney
and other stakeholders, thus adversely affecting their
workload.
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