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

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Date Published: 03/13/2019 09:00 PM
SB36:v98#DOCUMENT

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 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 county to maintain specified data for each individual that undergoes an assessment using the risk assessment tool. pretrial services agency that uses a pretrial risk assessment tool to validate the tool on a regular basis, but no less frequently than once every 6 months, 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 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: YES  

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, economic circumstances, and behavioral or developmental disability.
SEC. 2.Section 1320.35 is added to the Penal Code, to read:
1320.35.

(a)Each county that uses a risk assessment tool in a pretrial setting shall maintain data, including, but not limited to, information input into the risk assessment tool, outcomes from the risk assessment tool, and recommendations made by the risk assessment tool, for each individual that undergoes an assessment using the risk assessment tool.

(b)It is the intent of the Legislature in enacting this section to understand and reduce biases based on race, ethnicity, gender, economic circumstances, and behavioral or developmental disabilities in pretrial release decisionmaking.

SEC. 2.

 Section 1320.35 is added to the Penal Code, to read:

1320.35.
 (a) It is the intent of the Legislature in enacting this section to understand and reduce biases based on race, ethnicity, gender, 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.
(c) Any pretrial risk assessment tool used by a pretrial services agency shall be validated on a regular basis, but no less frequently then once every six months. A pretrial services agency may coordinate with the Judicial Council to validate a pretrial risk assessment tool.
(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 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, 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 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.
(3) Outcome measures, including, but not limited to, all of the following:
(A) The percentage of assessed individuals who make all scheduled court appearances.
(B) The percentage of assessed individuals who are not charged with a new offense during the pretrial stage.
(C) The percentage of assessed individuals who are not arrested for a new offense during the pretrial stage.
(D) The ratio of assessed and supervised individuals whose supervision level or detention status corresponds with their assessed risk of pretrial misconduct.
(E) The percentage of assessed individuals who violated conditions of release that resulted in revocation of pretrial release.
(F) The percentage 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.

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.