August 22, 2012

Senator Loni Hancock

California State Senate                                      Position:  OPPOSE

State Capitol Building

Sacramento, CA  95814                                     Location: Assembly Floor

RE:      SB 210 (Hancock) Criminal Procedure: release on defendant’s own recognizance (As Amended 8/2212)

Dear Senator Hancock:

Golden State Bail Agents Association (GSBAA) is a trade association representing the California bail industry.  The purpose of the association is to promote the understanding of the bail industry’s important role in California’s criminal justice system and to protect the rights of its citizens.  The Association is headquartered in Sacramento, California, but has members throughout California.  The members of GSBAA include bail employees, bail agents and bail insurance companies.

GSBAA opposes SB 210 because it will cost tax payer monies, undermine public safety and deprive victims of their day in court by encouraging the court to release defendants who are accused of Penal Code §1170(h) felony offenses on their own recognizance without having to post bail.

San Mateo County recently rejected a similar OR program because of the risk to public safety.  This bill will take away local control from counties who will no longer get to decide if they want a permissive tax payer funded OR program.  Under current law, as embodied in Penal Code §1203.018,  counties get to decide if they want a permissive OR program.

This bill is predicated on the availability of evidence-based pretrial risk assessment reports which will determine which defendants are good candidates for OR release. However, only Santa Cruz County set up to issue these reports and it is not clear when the other 57 counties will have the funds necessary to do these assessments. Therefore, the court will be encouraged to release felony defendants on OR without the reports they need to make an informed decision and public safety will suffer.

The 1170(h) defendants comprise the majority of cases adjudicated in California state courts and this bill encourages courts to release these defendants on OR, even if they have prior felony convictions.  Many of these defendants were previously sentenced to state prison and are recidivists that already had the benefit of supervised probation that likely included rehabilitative programs. Many of these offenders refused treatment or violated probation so many times that they were considered by the courts to be unamenable to supervision.  However, this bill will put them back on the streets on OR so they can victimize our communities again.

In regards to defendants who have demonstrated their inability to comply with the terms of their OR release, the ACLU has rejected our amendment to make those defendant ineligible for further OR release for a period of 12 months.  This means that courts will be encouraged to release defendants on OR even if  the defendants have previously been released on OR and have failed to appear in court without good cause or have been charged with new misdemeanor or felony offenses while released on OR.  This will destroy all deterrence and contribute to a revolving door of defendants constantly being arrested and released without going to court to stand trial for their crimes.

Unlike bail, this bill is tax payer funded.  The counties will have to hire personnel to run the OR program created by the bill, and eventually to write the assessment reports when funds become available.  The courts will have the expense of increased OR hearings and reviewing the assessment reports.

The bail industry is highly motivated to return bail fugitives to justice as shown in the enclosed chart from the January 28, 2008 New York Times.  As you can see, only 3% of defendants released on surety bond remained fugitives one year after they failed to appear while 8% of defendants released on their own recognizance remained at large after one year.   This means that defendants released on OR were 266% more likely to remain fugitives than those released on bail.

Furthermore, those who are asked to put up the money or cosign on the bail bond have an incentive to verify that the defendant does not represent an unacceptably high risk of flight prior to helping with his release; and they have an incentive to help him attend his court hearings.

Electronic monitoring can be a useful tool in the right circumstances, such as in the post-conviction context where bail is not available.  However, electronic monitoring is not a panacea.  Bail is a superior method of release in the pre-trial context because bail has lower rates of failures to appear and lower costs than electronic monitoring.

A 2011 study found that electronic monitoring had a 70% rate of false alerts causing significant increases in officer workloads, costs and dangers to public safety. (G.S. Armstrong, B.C. Freeman / Journal of Criminal Justice 39 (2011) 175–182)

This bill may also be unconstitutional under Marsy’s Law (Proposition 9) which was passed by the voters in 2008.  Marsy’s Law added the public safety bail provision to the California Constitution (Art. I, § 28(f)(3)), which requires that in setting bail or own recognizance release, the protection of the public and the safety of the victim shall be the primary considerations.

The safety of the victim is not listed as a primary consideration in this bill.  Instead the bill states only that “public safety” shall be the primary consideration in deciding whether to release the defendant.

Should you have any questions please contact our legislative advocate, Kathryn Lynch, at (916) 443-0202.

Sincerely,

John Bench, President

Golden State Bail Agents Association

cc:        Ms. June Clark, Deputy Legislative Secretary, Governor’s Office

Democratic Floor Alert

Mr. Gary Olson, Consultant, Assembly Republican Caucus

Ms. Kathryn Lynch, Legislative Advocate

Golden State Bail Agents Association