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SB-36 Pretrial release: risk assessment tools.(2019-2020)

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Date Published: 06/04/2019 09:00 PM
SB36:v97#DOCUMENT

Amended  IN  Assembly  June 04, 2019
Amended  IN  Senate  March 13, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 36


Introduced by Senators Hertzberg and Mitchell
(Principal coauthor: Assembly Member Bonta)
(Coauthors: Senators Allen, Beall, Bradford, and Wieckowski)

December 03, 2018


An act to add Section 1320.35 to Chapter 1.7 (commencing with Section 1320.35) to Title 10 of Part 2 of the Penal Code, relating to pretrial release.


LEGISLATIVE COUNSEL'S DIGEST


SB 36, as amended, Hertzberg. Pretrial release: risk assessment tools.
Existing law, beginning October 1, 2019, and stayed pending voter approval under the powers of referendum pursuant to the California Constitution, requires Pretrial Assessment Services, as defined, to assess a person arrested or detained, as specified, according to a risk assessment instrument, as defined. Existing law requires Pretrial Assessment Services to release from confinement specified individuals based on that risk assessment, and, if the person is not released, to submit that assessment to the court for use in its pretrial release or detention decision.
This bill would require each pretrial services agency that uses a pretrial risk assessment tool to validate the tool by January 1, 2021, and on a regular basis, basis thereafter, but no less frequently than once every 6 months, 3 years, and to make specified information regarding the tool, including validation studies, publicly available. The bill would require the Judicial Council to maintain a list of pretrial services agencies that have satisfied those validation requirements and complied with those transparency requirements. The bill would also require each pretrial services agency to maintain specified data regarding any pretrial risk assessment tool that it uses, including input data, performance measures, and outcome data. By creating additional duties for counties, this bill would create a state-mandated local program. The bill would require each pretrial services agency, beginning on or before July 1, 2021, and on or before July 1 of each year thereafter, to publish a report on its internet website with data related to outcomes and potential biases in pretrial release.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) Under California’s wealth-based bail and pretrial release system, thousands of individuals from lower economic backgrounds are held in county jails not because they have been convicted of a crime, but simply because they cannot afford to post money bail or pay a commercial bail bond company.
(2) The wealth-based bail system does not protect public safety because it is not based on public safety risk or flight risk.
(3) Many counties have begun to replace the wealth-based system with a pretrial release system that focuses on public safety and ensuring court appearances.
(4) If used correctly, risk assessment tools that are validated by scientific research can be employed to screen individuals for their flight risk and risk to public safety. This affords individuals awaiting trial an opportunity to be released while providing conditions and supervision that will ensure court appearances and protection of public safety.
(b) It is the intent of the Legislature that California independently evaluate any risk assessment tool employed in a pretrial setting to ensure its effectiveness in mitigating flight and public safety risk while minimizing biases and disparate results based on race, ethnicity, gender, age, economic circumstances, and behavioral or developmental disability.
SEC. 2.Section 1320.35 is added to the Penal Code, to read:

SEC. 2.

 Chapter 1.7 (commencing with Section 1320.35) is added to Title 10 of Part 2 of the Penal Code, to read:
CHAPTER  1.7. Pretrial Risk Assessment Tool Validation

1320.35.
 (a) It is the intent of the Legislature in enacting this section to understand and reduce biases based on race, ethnicity, gender, age, economic circumstances, and behavioral or developmental disabilities in pretrial release decisionmaking.
(b) For the purposes of this section, the following terms have the following meanings:
(1) “Pretrial risk assessment tool” means an instrument used to determine the risks associated with individuals in the pretrial context.
(2) “Pretrial services agency” means an agency or organization designated by the county to conduct pretrial risk assessments and provide other pretrial services to defendants.
(3) “Validated” means that the overall input criteria and each individual input criterion for a risk assessment tool have been evaluated, calibrated, and normalized using statistical methods to optimize accuracy and have been demonstrated by scientific research to be accurate and reliable in assessing the risk of a person failing to appear in court as required or the risk to public safety due to the commission of a new criminal offense if the person is released before adjudication of their current criminal offense and to minimize bias. risk assessment tool has been demonstrated by scientifically accepted methods to do both of the following:
(A) Accurately and reliably assess (i) the risk that an assessed person will fail to appear in court as required and (ii) the risk to public safety due to the commission of a new criminal offense if the person is released before the adjudication of the current criminal offense for which they have been charged.
(B) Minimize disparate impact based on race, ethnicity, gender, age, economic circumstances, and behavior or developmental disability.
(c) (1) Any pretrial risk assessment tool used by a pretrial services agency shall be validated by January 1, 2021, and on a regular basis, basis thereafter, but no less frequently then than once every six months. three years. A pretrial services agency may coordinate with the Judicial Council to validate a pretrial risk assessment tool.
(2) A pretrial risk assessment tool shall be validated using the most recent data collected by the pretrial services agency within its jurisdiction, or, if that data is unavailable, using the most recent data collected by a pretrial services agency in a similar jurisdiction within California.
(d) (1) In order to increase transparency, a pretrial services agency shall, with regard to a pretrial risk assessment tool that it utilizes, make the following information publicly available:
(A) Line items, scoring, and weighting, as well as details on how each line item is scored, for each pretrial risk assessment tool that the agency uses.
(B) Validation studies for each pretrial risk assessment tool that the agency uses.
(2) A pretrial services agency shall, when selecting which pretrial risk assessment tool to utilize, consider if ensure that the agency would be able to comply with paragraph (1) if that tool was selected.
(e) The Judicial Council shall maintain a list of pretrial services agencies that have satisfied the validation requirement described in subdivision (c) and complied with the transparency requirements described in subdivision (d).
(f) A pretrial services agency shall collect and retain all of the following information regarding any pretrial risk assessment tool that it uses:
(1) Input information, including, but not limited to, both of the following:
(A) The age, gender, race, ethnicity, and arrest offense for each individual assessed using the pretrial risk assessment tool.
(B) The total number of individuals assessed.
(2) Performance measures, including, but not limited to, all of the following:
(A) The number of interviews and assessments conducted on eligible booked detained individuals.
(B) The number of assessed individuals, aggregated by risk level.
(C) The number of cases in which the detention or release recommendation by the agency conducting the assessment does not conform with the release or detention decision of the judicial officer.
(D) The rate at which the pretrial assessment staff conducting the assessments follows pretrial risk assessment criteria when recommending release or detention.
(E) The rate at which judicial officers follow the detention or release recommendation of pretrial risk assessment staff.
(F) The rate at which judicial officers make a pretrial detention decision that is more restrictive than the release recommendation of pretrial risk assessment staff.
(3) Outcome measures, including, but not limited to, all of the following:
(A) The percentage and raw number of assessed and released individuals who make all scheduled court appearances.
(B) The percentage and raw number of assessed and released individuals who are not charged with a new offense during the pretrial stage.
(C) The percentage and raw number of assessed and released individuals who are not arrested for a new offense during the pretrial stage.
(D) The ratio percentage and raw number of assessed and supervised individuals whose supervision level or detention status corresponds with their assessed risk of pretrial misconduct.
(E) The percentage and raw number of assessed and released individuals who violated conditions of release that resulted in revocation of pretrial release.
(F) The percentage and raw number of assessed and released individuals who appear for scheduled court appearances, are not charged with any new offense during pretrial supervision, and did not receive a court remand.
(4) All of the following additional data:
(A) The number of individuals released, aggregated by release types, ordered during a specified timeframe.
(B) The number of supervised defendants divided by the number of pretrial officers or case managers.
(C) The time between the pretrial services agency’s assumption of supervision of an individual and the end of supervision of the individual.
(D) The proportion of pretrial defendants who are detained at any point throughout pretrial case processing.
(g) Beginning on or before July 1, 2021, and on or before July 1 of each year thereafter, the pretrial services agency shall publish on its internet website a report with aggregate demographic data related to outcomes and potential biases in pretrial release. The report shall, at a minimum, compare rates of release prebooking, prehearing, prearraignment, and pretrial, aggregated by race, ethnicity, gender, age, and offense. The report shall also aggregate by race, ethnicity, gender, age, and offense the number of cases in which the detention or release recommendation by the agency conducting the assessment did not conform with the release or detention decision of the judicial officer. The report published on or before July 1, 2021, shall include at least 12 months of data. The report published on or before July 1, 2022, shall include at least 24 months of data. The report published on or before July 1, 2023, and reports published each year thereafter shall include at least 36 months of data and include changes or trends in pretrial release rates, aggregated by race, ethnicity, gender, age, and offense, and any changes in policy made by the pretrial services agency to mitigate identified biases in outcomes.

SEC. 3.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.