BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
2
1
0
SB 210 (Hancock)
As Introduced February 11, 2013
Hearing date: January 14, 2014
Penal Code
JM:mc
PRETRIAL RELEASE DECISIONS AND CONDITIONS
HISTORY
Source: Author
Prior Legislation: SB 219 (Hancock) - 2012, died on Assembly
Floor
SB 1180 (Hancock) - 2012, died on Senate Floor
Support: California Attorneys for Criminal Justice; Friends
Committee on Legislation of California; American Civil
Liberties Union; California Public Defenders
Association; City of Richmond Police Department;
Women's Foundation of California; Asian Americans
Advancing Justice - Asian Law Caucus
Opposition:American Bail Coalition; Golden State Bail
Association; Aladdin Bail Bonds; California District
Attorneys Association
KEY ISSUES
SHOULD EVALUATION AND SUPERVISION PROGRAMS FOR "OWN RECOGNIZANCE"
(O.R.) PRETRIAL RELEASE BE DEFINED IN STATUTE AND IMPLEMENTED AT THE
(More)
SB 210 (Hancock)
PageB
DISCRETION OF A PARTICIPATING COUNTY, AS SPECIFIED?
SHOULD THESE NEW O.R. PROCEDURES AND POLICIES BE COORDINATED WITH
EXISTING BAIL STATUTES?
PURPOSE
The purposes of this bill are to 1) define a program of
evaluation and supervision for pretrial own recognizance (OR)
release; 2) implement these programs at the discretion of each
county; 3) provide that the court, probation, sheriff or other
designated government entity may employ staff to evaluate
defendants for release, prepare and submit reports to the court
and supervise released defendants; 4) require that pretrial
release reports include evidence-based risk evaluations; 5)
direct a court to determine at arraignment whether or not a
defendant charged with jail felony (Pen. Code � 1170, subd. (h))
is eligible for OR release; 6) provide that where an OR release
would not assure public safety or the return of the defendant to
court, the court shall set bail as necessary for these purposes;
7) provide that in granting OR release or setting bail, the
court shall impose reasonable conditions to assure public safety
and the defendant's return to court; 8) provide that pretrial
release staff shall notify a defendant of court appearances and
obligations, require him or her to report to staff periodically,
monitor compliance with release conditions, report violations of
release conditions and assist law enforcement in detaining a
defendant for whom a warrant has been issued; 9) specifically
authorize a court to set bail below the county bail schedule if
the scheduled bail is higher than necessary to ensure the
defendant's return to court; and 10) set out legislative
findings on the needs for, and benefits of, pretrial release
evaluation and supervision programs.
Existing Law Related to Bail
Existing provisions of the United States Constitution state that
excessive bail shall not be required, nor excessive fines
(More)
SB 210 (Hancock)
PageC
imposed, nor cruel and unusual punishments inflicted.
(U.S.Const., 8th Amend.)
Existing law provides for the licensing of bail agents, bail
permittees, and bail solicitors 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 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 return 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 constitution provisions state that the court shall
(More)
SB 210 (Hancock)
PageD
consider the safety of the victim and the victim's family in
setting bail and release conditions for a defendant. (Cal.
Const., Art. I, � 28, subd. (b)(3).)
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).)
Existing law provides that a person released on bail for a
felony who willfully fails to appear in court, as specified, is
guilty of an alternate felony-misdemeanor, punishable by a fine
of up to $10,000, a felony jail term of 16 months, two years or
three years, or a misdemeanor jail term of up to one year, or
both such fine and imprisonment. (Pen. Code � 1320.5.)
Existing law provides that if an on-bail defendant fails to
appear for arraignment, trial, judgment, or any other scheduled
court appearance, the bail is forfeited unless the clerk of the
court fails to give proper notice to the surety or depositor
within 30 days, or the defendant is brought before the court
within 180 days. (Pen. Code � 1305, subds. (a) and (b).)
Existing Law Relevant to Bail and Own Recognizance Release
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 - by the court. (Penal
Code � 1270.)
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
(More)
SB 210 (Hancock)
PageE
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
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 an arrested person, or his or her
attorney, family member or friend, may not make an ex-parte
application for OR release or reduced on bail if the person was
arrested for a serious felony or a violent felony (except
residential burglary), intimidating a witness, as specified,
cohabitant or spousal abuse, as specified, or violating a
domestic violence restraining order, as specified. (Pen. Code
�� 1269c and 1270.1.)
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
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 OR,
a hearing must be held in open court before the magistrate or
judge. However, in a domestic violence matter, and upon a
declaration of facts by a law enforcement officer, the court may
increase the bail amount without a hearing. (Pen. Code �
1270.1.)
Existing Law Related to Own Recognizance Release
(More)
SB 210 (Hancock)
PageF
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. (Pen. Code � 1270.)
Existing law provides that an arrested person, or his or her
attorney, family member or friend, may not make an ex-parte
application for OR release or reduced on bail if the person was
arrested for a serious felony or a violent felony (except
residential burglary), intimidating a witness, as specified,
cohabitant or spousal abuse, as specified, or violating a
domestic violence restraining order, as specified. (Pen. Code
�� 1269c and 1270.1.)
Existing law provides that before a defendant is granted OR
release, he or she must complete and file a signed agreement
that includes:
a promise to appears at all times and places ordered by
the court;
a promise to obey all conditions of release imposed by
the court;
a promise not to leave the state without permission of
the court;
agreement to waive extradition if he or she is
apprehended outside the state; and
acknowledgement that he or she has been informed of all
applicable consequences of violating the release agreement.
(Pen. Code � 1318.)
Existing law provides that a court, with the concurrence of the
board of supervisors, may employ an investigative staff to
recommended whether defendants should be released on OR. (Pen.
Code � 1318.1, subd. (a).)
Existing law provides any OR investigative report concerning a
defendant charged with a violent felony (Pen. Code � 667.5,
subd. (c)) or a felony violation of driving under the influence
with injury (Veh. Code � 23153) shall be submitted for the court
(More)
SB 210 (Hancock)
PageG
for review and include written verification of the following:
any outstanding warrants;
prior failures to appear;
criminal record; and
residence in the past year. (Pen. Code � 1318.1, subd.
(b).)
Existing law provides that no person arrested for a violent
felony (Pen. Code � 667.5, subd. (c)) may be released on OR
until a court hearing as to which the prosecutor has been given
notice and an opportunity to be heard. (Pen. Code � 1319, subd.
(a).)
Existing law provides that no person charged with a violent
felony shall be granted OR release if he or she has failed to
appear in a felony matter. (Pen. Code � 1319, subd. (b).)
Existing law provides that in determining whether to grant OR
release to an eligible defendant charged with a violent felony,
the court shall state its reasons on the record for granting or
denying OR release and shall consider the following:
the existence of any outstanding warrants;
information in the investigative reports, although the
court may still release the defendant if the court has not
received the report; and
any information presented by the prosecutor. (Pen. Code
� 1319, subds. (b)-(c).)
Existing law (Pen. Code � 1319.5) provides that OR release of
the following defendants shall not be granted without a court
hearing:
Any defendant who is on probation or parole at the time
of a new arrest.
Any defendant who has failed to appear three or more
times in the preceding three years, as specified, and is
charged with one of the following offenses:
o any felony;
(More)
SB 210 (Hancock)
PageH
o any gang offense;
o assaultive conduct;
o a theft offense; or
o burglary.
Existing law provides that any person who willfully fails to
appear, as specified, after being released on OR, is guilty of a
crime as follows:
Where the charge or conviction is a misdemeanor, the
offense is a misdemeanor, punishable by imprisonment in a
county jail for up to six months, a fine of up to $1,000,
or both.
Where the charge of conviction is a felony, the offense
is an alternate felony misdemeanor, punishable by a fine of
up to $5,000, a felony jail term of 16 months, two years or
three years, or a county jail term of up to one year for a
misdemeanor conviction. (Pen. Code � 1320.)
Provisions in this Bill Concerning Pretrial Release Evaluation
and Supervision, Including Considerations for Granting OR
Release, Setting Bail and Determining Release Conditions
This bill provides that a sheriff, probation department or other
local government agency may, with the concurrence of the board
of supervisors, employ an investigative staff to determine
whether or not a defendant may be released on his or her own
recognizance. Only one entity shall issue a report.
This bill provides that where a defendant is being held felony
charges punishable only by a term in a county jail (Pen. Code
�1170 (h)), the court at arraignment shall determine if the
defendant is eligible for OR release. Public safety shall be
the court's primary consideration and the court may impose
reasonable conditions of release.
This bill provides that a pretrial OR release investigation
report may be prepared for any defendant not charged with a
violent felony or driving under the influence with injury.
(More)
SB 210 (Hancock)
PageI
This bill provides that a pretrial OR release investigation
report shall include "all results of an evidence-based pretrial
risk assessment" concerning the risk the defendant presents to
public safety and the probability the defendant will return to
court.
This bill defines an "evidence based" pretrial risk assessment
as an objective, standardized analysis consistent with the best
available scientific evidence and professional knowledge.
This bill provides that an interview of the defendant for
purposes of pretrial OR release evaluation shall not include
inquiry into the facts of the incident underlying the charges,
and any information about the incident provided by the defendant
shall not be included in the report. Information provided by
the defendant shall solely be used to evaluate pretrial OR
release and for determining appropriate conditions for release.
This bill provides that pretrial OR release reports may be filed
as part of the "case record."
This bill provides that in setting conditions for pretrial
release and in setting, reducing or denying bail, the court
shall consider the following, in addition to the protection of
the public, the defendant's criminal record and the seriousness
of the charged offense:
The nature and circumstances of the charged offense,
including whether or not a drug offense involved large
quantities.
The history and characteristics of the defendant,
including employment, family, duration of residence,
educational or vocational program enrollment, drug or
alcohol dependence, and any drug or alcohol treatment.
Whether the defendant was on probation, parole or any
form of release pending trial, sentencing or appeal at the
time of his or her arrest.
Public safety shall be the primary consideration.
(More)
SB 210 (Hancock)
PageJ
This bill provides that a court, sheriff, probation department,
or other designated agency may, with concurrence of the board of
supervisors, employ "supervision staff" to monitor the
defendant's compliance with the conditions of release.
Supervision staff may do any of the following:
Notify the defendant of court appearances or
obligations.
Require the defendant to report periodically in person
or by telephone or mail.
Monitor and assist the defendant with release
conditions.
Supervise a defendant's home detention, with or without
electronic monitoring.
Report violations of release conditions.
Provide information to assist law enforcement in
detaining any defendant for whom a bench warrant has been
issued.
This bill includes the following legislative findings and
declarations:
Pretrial custody reform is urgently needed in
California, as the pretrial custody rate of 71% far exceeds
the national average of 61%.
Pretrial custody reform will give counties flexibility
in managing pretrial defendants, thereby supporting
implementation of criminal justice realignment.
Pretrial service programs have been successfully
implemented in many jurisdictions, reducing jail
populations, saving money, reducing recidivism and
protecting the public.
Evidence-based programs will allow empirical analysis in
pretrial decisions
Evidence-based programs will help to ensure that
decisions concerning release, including conditions of
release are based on credible assessment of a defendant's
risk to public safety and likelihood of return to court.
Report confidentiality will allow release programs to
(More)
SB 210 (Hancock)
PageK
operate effectively and protect the rights of persons who
submit sensitive information for the reports.
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 that 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.
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 requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
(More)
SB 210 (Hancock)
PageL
state's motion, arguing 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 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
As of December 4, 2013, California's 33 prisons were at 146.2
percent capacity, with 119,258 inmates.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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
(More)
SB 210 (Hancock)
PageM
legislative drafting error;
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:
SB 210 would provide an effective framework for
alternatives to pretrial jail detention. It would
authorize a court to release a defendant on OR if
public safety is not put at risk and the defendant
will return to court. OR release can involve pretrial
supervision, prohibition of contact with alleged
victims and witnesses and home detention - including
electronic monitoring. Defendants who do not meet the
requirements for OR would be required to post bail to
obtain release.
SB 210 would authorize a local government agency to
conduct a pretrial investigation report about the
defendant's potential threat to public safety and
likelihood of returning to court. Each report must
include the results of an evidence-based risk
assessment. Further, SB 210 would require a court to
consider a defendant's ties to the community, current
participation in educational or vocational training,
and any mental health or drug dependency issues. Of
course, the court must consider the circumstances and
seriousness of the alleged crime, as public safety is
the most important OR consideration.
(More)
SB 210 (Hancock)
PageN
Seventy-one percent of detainees in county jails
statewide are awaiting trial rather than serving their
sentences. Much of the current jail overcrowding is
due to overuse of pretrial detention, not felony
sentences imposed under Realignment. Jail
overcrowding burdens California counties. In urban
areas, jail detention can cost as much as $100 per
defendant per day. Pretrial community supervision and
other non-jail alternatives can cost as little as
$2.50 per defendant per day.
Some counties have successfully implemented
alternatives to pretrial detention. Santa Cruz
County's increased use of OR and pretrial supervision
reduced the pretrial detention rate to 56 percent, far
below the statewide average. Outcomes have been
positive: 92 percent of defendants did not reoffend
and 89 percent made all of their court appearances.
Santa Clara County has implemented similar policies
with equivalent results.
The current bail-dependent system creates a two-tiered
pretrial population based solely on income. Wealthy
defendants who can afford bail are released and
allowed to return to their homes and jobs. Defendants
who cannot afford bail remain detained.
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.) 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
(More)
SB 210 (Hancock)
PageO
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.)
In current practice, a defendant pays a premium or fee - often
the state maximum of 10% of the amount of the bond. That is, a
defendant for whom bail is set at $100,000 would likely pay a
non-refundable premium of $10,000 to the bail agent. The agent
then posts a bond with the court in the amount of $100,000,
securing the release of the defendant from jail. The bond is
actually issued by an insurance company. The bail contract
would normally include an agreement that the defendant reimburse
the agent for the full value of the bond in the event that the
bond is paid to the court. Bail agents typically require
collateral for the bond. Collateral can include real property,
cars, bank accounts and other items of value.
A bail bond is forfeited and paid to the court only where the
defendant fails to return for a court appearance. The actual
payment of the bond is generally stayed for 180 days after the
defendant fails to appear and can be postponed further through a
motion to the court under specified circumstances. If the
defendant returns or is returned to court within that time, the
bond need not actually be paid. It does not matter how or why
the defendant is returned to court within the 180
grace period. The bond is not paid if the defendant is arrested
and held in custody on new charges. The bond is not paid if the
defendant returns to court voluntarily. The bond is not paid if
the defendant is extradited to California from a foreign
country.
In California, bail is largely 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
(More)
SB 210 (Hancock)
PageP
charged with a serious felony or domestic violence. (Pen. Code
� 1270.1.) Most counties also have a process for determining
whether or not defendants charged with certain low-level crimes
can obtain an OR release before the initial court appearance.
(Pen. Code � 1318.1.)
3. Commercial Bail Release is Common Only in the United States
Commercial bail is largely not employed outside the United
States and the Philippines. This is true even in countries,
including Canada, the United Kingdom, Australia and others that
follow the common law<1> system that was developed in England.
(The United States is a common law country.) In many countries,
including Canada and England, commercial bail is illegal. It is
considered unethical in Australia, India and South Africa.
(Illegal Globally, Bail for Profit Remains in U.S., Liptak, New
York Times, Jan. 29, 2008.)
The 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.
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
---------------------------
<1> Under common law, as opposed to the civil-code structure,
enduring tradition and rulings of courts interpreting statutory
law have the force of law (when not in conflict with
constitutional provisions or legislative acts. (Civ. Code � 22;
Blacks Law Dic. 5the Ed. West Pub. 1979).
(More)
SB 210 (Hancock)
PageQ
bounty hunters<2> in arresting fugitive defendants often makes
bail agents particularly efficient in returning fugitives to
court.
4. International Association of Police Chiefs, United States
Department of Justice and Pretrial Justice Institute Policy
Paper and Study on non-Bail Pretrial Release
In anticipation of pending criminal justice realignment, the
California State Sheriffs' Association, the California
Association of Counties and the Chief Probation Officers of
California held a conference on September 21, 2011, in
Sacramento called "Innovations in Public Safety and Justice in
California."
A booklet of conference resources was prepared and distributed.
The resource booklet included a 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 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.
(More)
---------------------------
<2> Reports of abuses by bounty hunters led to the enactment in
California of the Bail Fugitives Recovery Persons Act in 1999.
(AB 243 (Wildman) Ch. 426, Stats. 1999.) The Act was expanded
in 2004 and sunset in 2010. AB 2029 (Ammiano), pending in the
Assembly, would reenact the bounty hunter regulation law.
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; and
reduce jail overcrowding, thereby wisely using public
funds.
5. 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.<3> (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. Sheriffs in 17 counties have released convicted
inmates to relieve jail overcrowding, often pursuant to a
federal court order. (LHBL, p. 2.)
The report noted with concern that 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
---------------------------
<3> http://www.lhc.ca.gov/studies/216/Report216.pdf
(More)
SB 210 (Hancock)
PageS
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 did not recommend a statewide bail schedule. The
report did, however, "recommend that the state establish
objective criteria for bail schedules to ensure that bail
schedules are consistent in their aims statewide?." Statutory
criteria for bail schedules could provide fairness and more
consistency in setting bail statewide. Bail amounts vary widely
for 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.)
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.
It is likely that in current practice, the judicial committees
that set county bail schedules consider the factors a court
must, by statute, 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.
***************
SB 210 (Hancock)
PageT