BILL ANALYSIS �
SB 210
Page 1
Date of Hearing: June 17, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 210 (Hancock) - As Amended: June 11, 2014
SUMMARY : Revises the criteria for determining eligibility for
pretrial release from custody. Specifically, this bill :
1)Contains legislative findings and declarations regarding
pretrial custody.
2)Revises the criteria the court must consider for determining
pretrial release to include the following:
a) The protection of the public;
b) The nature and circumstances of the charged offense;
c) The history and characteristics of the defendant;
d) The defendant's prior criminal record, including whether
the defendant was on probation, parole, or other form of
supervised release at the time of arrest; and,
e) The probability of the defendant's appearance in court,
including record of past court appearances, or of flight to
avoid prosecution.
3)Specifies that public safety and the victim's safety are the
primary consideration.
4)States that in considering the previous criminal record of the
defendant and the history and characteristics of the defendant
the judge or magistrate may consider the results of an
evidence-based pretrial risk assessment instrument that is
predictive of public safety and failure to appear.
5)Authorizes a county sheriff, probation department, or other
local agency, with concurrence of the board of supervisors, to
employ supervisory staff to make recommendations for release
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of defendants on their own recognizance.
6)Requires such an agency to prepare a pretrial investigative
report in specified types of cases recommending whether a
defendant should be released on his or her own recognizance.
In other cases, the report is discretionary.
7)Specifies that only one agency shall issue a pretrial
investigative report.
8)Requires the report to include the results of an
evidence-based pretrial risk assessment.
9)Defines "evidence-based pretrial risk assessment" as "the
objective, standardized analysis of information about a
pretrial defendant in a way that is consistent with and guided
by the best available scientific evidence and professional
knowledge that measures the defendant's probability of
appearing at trial and the potential risk to public safety
while pending case disposition."
10)Prohibits interviewing the defendant about the facts and
circumstances of the crime, and states that any information
provided by the defendant cannot be included in the report.
11)Specifies that any information provided by the defendant can
only be used for the purpose of determining whether the
defendant should be released on his or her own recognizance,
for setting the conditions of release, or for modifying a
prior release order.
12)Authorizes a county sheriff, probation department, or other
local agency to employ supervisory staff to monitor released
defendants, if it has concurrence of the board of supervisors.
13)Authorizes the supervisory staff to do any of the following:
a) Notify the defendant of court appearance obligations;
b) Require the defendant to report periodically by mail,
telephone, or personal appearance to verify compliance with
release conditions;
c) Monitor and assist the defendant with complying with
release conditions;
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d) Supervise a defendant placed on home detention, with or
without electronic monitoring, as a condition of release;
e) Promptly report violations of release conditions to the
court; and,
f) Provide information to assist any law enforcement
officer with detaining a defendant supervised pursuant to
this section and for whom a bench warrant has been issued.
EXISTING LAW :
1)Prohibits excessive bail. (U.S. Const., 8th Amend. & Cal.
Const., art. I, sec. 12.)
2)States that a person shall be granted release on bail except
for the following crimes when the facts are evident or the
presumption great:
a) Capital crimes;
b) 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 ,
c) 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, sec. 12.)
3)Lists several factors that the court must consider in setting,
reducing, or denying bail: the protection of the public; the
seriousness of the charged offense; the defendant's prior
criminal record; and, the probability of his or her appearing
at trial or hearing of the case. Public safety is the primary
consideration. (Pen. Code, � 1275, subd. (a).)
4)States that 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
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crime charged, and the alleged use or possession of controlled
substances by the defendant. (Pen. Code, � 1275, subd. (a).)
5)Requires the court to consider the safety of the victim and
the victim's family in setting bail and release conditions for
a defendant. (Cal. Const., art. I, sec. 28, subd. (b)(3).)
6)Specifies conditions for a defendant's release on his or her
own recognizance (OR). (Pen. Code, 1318.)
7)Authorizes a court, with the concurrence of the board of
supervisors, to employ an investigative staff for the purpose
of recommending whether a defendant should be released on OR.
(Pen. Code, � 1318.1, subd. (a).)
8)States that whenever a court has employed investigative staff
for the purpose of recommending whether a defendant should be
released on OR, an investigative report shall be prepared in
all cases involved in a violent felony listed in subdivision
(c) of Penal Code Section 667.5, or a felony violation of
driving under the influence and causing bodily injury to
another person, recommending whether the defendant should be
released on OR. The report shall include all of the following
a) Written verification of any outstanding warrants against
the defendant;
b) Written verification of any prior incidents where the
defendant has failed to make a court appearance;
c) Written verification of the criminal record of the
defendant; and,
d) Written verification of the residence of the defendant
during the past year. (Pen. Code, � 1318.1(b).)
9)Prohibits the release of a defendant on his or her own
recognizance for any violent felony until a hearing is held in
open court and the prosecuting attorney is given notice and an
opportunity to be heard on the matter. (Pen. Code, � 1319.)
10)Provides that a defendant released on bail for a felony who
willfully fails to appear in court, as specified, is guilty of
a crime. (Pen. Code, � 1320.5.)
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11)Specifies that if an on-bail defendant fails to appear for
any 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) & (b).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 210 would
create an effective framework for managing pretrial population
in two ways. First, it would revise the criteria both for
setting bail and determining eligibility for pretrial release.
It 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. It would also require consideration of the
circumstances and seriousness of the alleged crime.
"Second, it would authorize a local government agency to conduct
a pretrial investigation report to determine the defendant's
potential threat to public safety and probability of making
future court appearances. Any such report must include the
results of an evidence-based risk assessment.
"Some counties have successfully used risk assessment tools.
Santa Cruz County has 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)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. The report
noted that pretrial detainees make up 60% of jail inmates.
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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.
(http://www.lhc.ca.gov/studies/216/Report216.pdf)
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
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.
(http://www.lhc.ca.gov/studies/216/Report216.pdf)
3)Arguments in Support :
a) The California Public Defenders Association , a
co-sponsor of this bill, writes, "It is often erroneously
assumed that all but the most serious and violent offenders
are afforded the opportunity to be released pre-trial on
bail, or on one's own recognizance (OR). This is a
practical impossibility for nearly everyone who meets the
indigency requirement of being represented by a public
defender; meaning pre-trial release is but a fantasy for
nearly 90 percent of those charged with a felony and nearly
75 percent of those charged with a misdemeanor. Often,
even a modest percentage of the bail amount is not even
within imaginable reach of our clients; and, release on OR
is rarely an option in certain counties, and for certain
crimes. It should be noted that the vast majority of
individuals in our local jails are being held pre-trial,
and that implementation of this measure would go a long way
towards reducing local over-crowding, and corollary costs
associated with such over-crowding. ?
"The use of an evidence-based risk assessment tool as
envisioned by this bill will increase public safety by
better ensuring that low-risk persons who can safely be
released to the community have a chance of being so
released, while those that are more likely to pose a danger
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of reoffending or failing to appear, remain in custody or
are released under appropriate supervision. Evidence shows
lower recidivism rates for low-level offenders who are able
to address their court cases while maintaining positive
community contacts and pro-social activities. Evidence
shows the opposite results for those coming into contact
with higher-risk and more hardened criminals who are
serving time in custody."
b) According to the City of Richmond Police Department ,
"[W]hen release decisions involving such defendants are
based on a verified risk-assessment tool rather than simply
upon a defendant's financial ability to post bail, the
community is safer and the likelihood of recidivism is
reduced. Bed space in our county jails is scarce in
addition to being costly. Rather than filling up our jails
with low level, low-risk offenders, it makes more sense
that pre-trial incarceration be reserved for those
individuals arrested for violent crimes, arrested persons
who pose a higher risk to public safety, or arrested
persons who are less likely to appear for trial.
"There has been a substantial amount of solid research that
shows pre-trial incarceration of low-level, low-risk
offenders tends to have a substantially disruptive effect
on these individuals' lives and families. It often causes
these individuals to lose their jobs, fracture their ties
within the community, and experience severe stress to their
interpersonal relationships. Allowing these persons to
remain with their families and preserve their employment
instead of sitting in a jail cell can reduce their
long-term likelihood of committing further crimes."
4)Arguments in Opposition :
a) According to the Fresno County District Attorney , "The
Fresno County District Attorney's Office believes that the
protection of the public and safety of the victim must
remain the primary considerations for setting bail or
releasing a defendant on his own recognizance. With the
proposal that all realignment felons be treated the same
regardless of the broad range of criminal offenses they may
represent, Senate Bill 210 fails to make the safety of the
victim a primary consideration. The default treatment of
offenders poses a real threat to public safety."
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b) Aladdin Bail Bonds states, "The premise of this bill is
that 'Pretrial service programs have been successfully
implemented in many jurisdictions, and have helped to
reduce the pretrial jail populations, save money, reduce
recidivism, and protect the public.' But that is not the
case. Across the country, pretrial services are resulting
in larger and larger expenditures of taxpayer dollars on
services that are performed more effectively by private
bail companies at no cost to taxpayers. For example, in
Washington D.C., the Pretrial Services Agency's Fiscal Year
2012 and 2013 Congressional Budget Justification and
Performance Reports show annual budgets of approximately
$59 million, all of which was paid by the taxpayers and not
the criminal defendants. ?
"Requiring defendants to post a surety bail bond has a proven
track record of ensuring defendants return to court, and it
does so at no cost to the public. Moreover, the
investigation and underwriting process used by reputable
companies in the bail industry helps to prevent violent
tragedies?. Before writing bail bonds for defendants, bail
companies establish a network of involved and caring family
members and friends, all of whom work together with the
bail agent to ensure the defendant not only returns to
court, but does not reoffend in the interim.
"Bail has a proven record of success. Pretrial services
programs, on the other hand, only succeed in costing lives
and money."
5)Related Legislation : AB 2388 (Hagman) requires the Judicial
Council to prepare, adopt, and annually revise an advisory
statewide bail schedule for all bailable felony offenses and
for all misdemeanor and infraction offenses, except Vehicle
Code infractions, that counties may reference when setting a
countywide bail schedule. AB 2388 was held on the
Appropriations suspense file.
6)Prior Legislation :
a) AB 805 (Jones-Sawyer), Chapter 17, Statutes of 2013,
provides that in setting bail, a judge or magistrate may
consider factors such as the report prepared by
investigative staff for the purpose of recommending whether
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a defendant should be released on his/her own recognizance.
b) AB 723 (Quirk), of the 2013-14 Legislative Session,
allows a person on post-release community supervision who
has a revocation petition filed against him or her to file
an application for bail with the superior court. AB 723
was held on the Senate Committee on Appropriations'
Suspense File.
c) SB 210 (Hancock), of the 2011-12 Legislative Session,
required a court to determine, with public safety as the
primary consideration, whether a defendant charged with a
jail felony is eligible for release on his or her own
recognizance (OR). SB 210 failed passage on the Assembly
Floor.
d) SB 1180 (Hancock), of the 2011-12 Legislative Session,
was substantially similar to SB 210. SB 1180 died on the
Senate Inactive File.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union (Co-Sponsor)
California Public Defenders Association (Co-Sponsor)
Alameda County Board of Supervisors
Asian Americans Advancing Justice - Asian Law Caucus
California Attorneys for Criminal Justice
California Association of Pretrial Services
Californians United for a Responsible Budget
City of Richmond Police Department
Coalition for Humane Immigrant Rights of Los Angeles
Fair Chance Project
Legal Services for Prisoners with Children
Little Hoover Commission
Los Angeles Regional Reentry Partnership
PICO California
Taxpayers for Improving Public Safety
Women's Foundation of California
Opposition
Aladdin Bail Bonds
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American Bail Coalition
California District Attorneys Association
California State Sheriffs' Assocation
Crime Victims United of California
Fresno County District Attorney
Golden State Bail Agents Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744