BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 968 (Wright)
As Amended April 10, 2012
Hearing date: April 24, 2012
Penal Code (URGENCY)
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RELEASE ON REDUCED BAIL UNDER ELECTRONIC MONITORING
HISTORY
Source: Author
Prior Legislation: AB 109 (Budget Committee) - Ch. 15, Stats.
2011
AB 1369 (Davis) - 2010, vetoed
SB 959 (Romero) - Ch. 252, Stats. 2007
Support: Golden State Bail Agents Association; Crime Victims
United of California; California Bail Agents
Association; Congress of Racial Equality of California;
Citizen Advisory Board; Aladdin Bail Bonds; California
Police Chiefs; American Bail Coalition; Los Angeles
County Sheriff's Department
Opposition:California District Attorneys Association
KEY ISSUE
SHOULD A PRETRIAL DETAINEE HELD WITHOUT A WARRANT FOR A BAILABLE
FELONY PUNISHABLE BY IMPRISONMENT IN THE COUNTY JAIL BE AUTHORIZED
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TO MOVE THE COURT AT OR AFTER A PRELIMINARY HEARING FOR RELEASE ON
REDUCED BAIL UNDER ELECTRONIC MONITORING, AS SPECIFIED?
PURPOSE
The purposes of this bill are to 1) create a process where
pretrial detainees held for a felony punishable by a county jail
term may, at or after the preliminary hearing, move the court
for release on reduced bail on electronic monitoring; and 2)
provide that where a person is released on reduced bail pursuant
to this bill, the court and the correctional administrator shall
be informed of the name, address and contact information for the
bail agent or surety.
Bail Generally
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
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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
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).)
Home Detention for Persons held in Jail in Lieu of Bail
Existing law permits a county board of supervisors to authorize
a county correctional administrator to place county jail inmates
who are being held in lieu of bail in a voluntary program of
home detention when specified conditions are met. Such a
program shall include electronic monitoring, as specified.
(Pen. Code � 1203.018, subd. (a)-(b).)
Existing law provides that an eligible inmate must be a minimum
security inmate with no outstanding holds or warrants and one of
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the following apply:
The inmate has been held in custody for at least 30 days from
the day of arraignment on misdemeanor charges.
The inmate has been held in custody for at least 60 days from
the day of arraignment on felony charges. (Pen. Code �
1203.018, subd. (b)-(c)(1).)
Existing law provides that all participants shall be subject to
discretionary review by the correctional administrator. (Pen.
Code � 1203.018, subd. (c)(2).)
Existing law provides that the board of supervisors may prescribe
reasonable rules and regulations under which an involuntary home
detention program may operate. The inmate shall agree in writing
to comply with the rules and regulations of the program,
including, but not limited to, the following rules:
The participant shall remain within the interior premises of
his or her residence during the hours designated by the
correctional administrator.
The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any
time for purposes of verifying the participant's compliance
with the conditions of his or her detention.
The use of electronic monitoring may include global positioning
system devices or other supervising devices for the purpose of
helping to verify his or her compliance with the rules and
regulations of the home detention program. The devices shall
not be used to eavesdrop or record any conversation, except a
conversation between the participant and the person supervising
the participant which is to be used solely for the purposes of
voice identification.
The correctional administrator in charge of the county
correctional facility from which the participant was released
may, without further order of the court, immediately retake the
person into custody if the electronic monitoring or supervising
devices are unable for any reason to properly perform their
function at the place of detention, if the person fails to
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remain within the place of home detention as stipulated in the
agreement, or if the person for any other reason no longer
meets the established criteria. (Pen. Code � 1203.018, subd.
(d).)
This bill provides that where a person is arrested without a
warrant for a bailable offense, and that offense is punishable
as a jail felony pursuant to Penal Code Section 1170,
subdivision (h), the person may apply for release on bail
reduced up to 75% of the set amount of bail. The following
requirements must be met before the application can be granted:
The person must agree to be placed on an electronic
monitoring program administered by county-authorized jail
administrator; and
The application can be made at the preliminary hearing
or any time thereafter.
This bill provides that if the defendant is released on reduced
bail under this bill, the name, address and contact information
of the bail agent or surety shall be provided to the court and
the correctional administrator.
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
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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
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
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79,650.
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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.
COMMENTS
1. Need for This Bill
According to the author:
Over the last decade the bail schedule in counties all
across California has risen due to the fact that
judges have become more and more frustrated due to
limited jail space. As a result, more and more
Sheriffs have raised the amount of bail required on
warrants or otherwise in order for them to be booked
into custody. In Los Angeles County the Sheriff, due
to a federal court ordered population cap, would not
accept any new bookings if the defendant's bail was
set under $25,000 - in San Bernardino it was set to
$250,000.
In order to counter such measures judges, in these and
other counties, would increase the bail schedules to
higher amounts, to force the Sheriff's to hold more
people thus making it increasingly difficult for
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people to make bail. This bill creates a clear
process for a defendant to obtain release on reduced
bail, but with the added security of electronic
monitoring, upon approval of the court.
2. The Pretrial Program for Release on Electronic Monitoring
without Bail
As part of criminal justice realignment legislation - AB 109
(Budget Committee), Ch. 15, Stats. 2011 - the Legislature
enacted Penal Code Section 1203.018, which provides that a
county board of supervisors may implement a program of pretrial
release on electronic monitoring. Section 1203.018 provides
that a felony defendant may not be released on electronic
monitoring without bail until he or she has been held in custody
for 60 days.
This bill creates a process for a defendant to obtain release on
reduced bail under an electronic monitoring administered by the
county jail administrator. The electronic monitoring provided
pursuant to this bill would likely overlap with any electronic
monitoring program defined in Section 1203.018. The bill would
appear to apply to a defendant not be granted release on
electronic monitoring without bail under Section 1203.018. The
bill would also allow a defendant to seek release on reduced
bail before the 60-day waiting period required under the Section
1203.018 program.
SHOULD A PROCESS BE CREATED UNDER WHICH A DEFENDANT HELD IN JAIL
PENDING TRIAL FOR A FELONY PUNISHED BY A JAIL TERM UNDER
REALIGNMENT MAY APPLY TO THE COURT FOR RELEASE ON REDUCED BAIL
UNDER ELECTRONIC MONITORING?
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