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SB-262 Bail.(2021-2022)

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Date Published: 09/02/2021 09:00 PM
SB262:v95#DOCUMENT

Amended  IN  Assembly  September 02, 2021
Amended  IN  Assembly  August 30, 2021
Amended  IN  Senate  May 20, 2021
Amended  IN  Senate  March 10, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 262


Introduced by Senators Hertzberg and Skinner
(Principal coauthor: Assembly Member Bonta)
(Coauthors: Senators Bradford and Wiener)

January 27, 2021


An act to amend Section 1269b of, and to add Sections 1269d and 1302.5 to, the Penal Code, relating to bail, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


SB 262, as amended, Hertzberg. Bail.
Existing law provides for the procedure of approving and accepting bail, and issuing an order for the appearance and release of an arrested person. Existing law requires the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail, as specified, and requires the superior court judges, when adopting that schedule, to consider the seriousness of the offense charged and assign an additional amount of required bail for each aggravating or enhancing factor chargeable in the complaint, as specified.
This bill would instead require the Judicial Council to, starting January 1, 2023, prepare, adopt, and annually revise a statewide bail schedule. The bill would require the Judicial Council, when adopting that schedule, to consider the seriousness of the offense charged and input from stakeholders, experts, and other interested parties. The bill would require the court, prior to setting bail, to consider whether nonfinancial conditions will reasonably protect the public and the victim and reasonably assure the arrestee’s presence at trial. The bill would, if the court concludes that money bail is necessary, require the court to conduct an inquiry into the arrestee’s ability to pay, as specified. The bill would prohibit costs relating to conditions of release on bail from being imposed on persons released on bail or on their own recognizance.
This bill would require the court to order a return of money or property paid to a bail bond licensee by or on behalf of the arrestee to obtain bail if the action or proceeding against the arrestee who has been admitted to bail is dismissed, no charges are filed against the arrestee within 60 days of arrest, or the arrestee has made all court appearances during the pendency of the action or proceeding against the arrestee, as specified. The bill would authorize the bail bond licensee to retain a surcharge not to exceed 5% of the amount paid by the arrestee or on behalf of the arrestee. The bill would require the court to order this return of money or property only for a bail contract entered into on or after January 1, 2022.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 This act shall be known, and may be cited, as the Safe and Resilient Communities Act of 2021.

SEC. 2.

 The Legislature finds and declares all of the following:
(a) The pretrial justice system in California is fundamentally broken. Not only has it failed to achieve its stated objectives of preventing recidivism and assuring court appearance, but it has significantly eroded a sacred principle in our criminal justice system: the presumption of innocence.
(b) California’s high incarceration rate is a direct consequence of our heavy reliance on pretrial detention. In 2015, the Public Policy Institute of California reported that roughly 50,000, or 62 percent, of jail beds in California were filled with inmates awaiting trial or sentencing. According to a more recent report, 44,241 county jail inmates across California in 2020, approximately three-quarters of the state’s total jail population, had not been convicted of or sentenced for a crime.
(c) As the California Supreme Court has observed, the consequences of pretrial detention on the accused and their families are immense and profound. Research suggests that pretrial detention heightens the risk of losing a job, a home, and custody of a child. Time in jail awaiting trial may even be associated with a higher likelihood of reoffending, beginning anew a vicious cycle.
(d) These consequences are intensified by California’s money bail system, which often keeps people incarcerated before trial simply because they cannot afford to pay bail. Indeed, as the California Supreme Court has adduced, the median bail amount in California, roughly $50,000, is more than five times the median for the rest of the nation on average.
(e) A recent report published by the University of California, Los Angeles, Bunche Center estimated that approximately 97 percent of people who make bail in California use a bail agent and pay a nonrefundable fee to a private company in order to secure their freedom. This is not a simple transaction because people often have to borrow from friends and family, enter into exploitative financing schemes, or put up their property, even their homes, as collateral. Arrestees unable to gather the funds are often pressured into taking a plea without having a full and fair opportunity to defend their case, or worse, when they are actually innocent.
(f) The money bail industry in California has evolved into a predatory scheme that puts profits over people and does not enhance public safety or improve court appearance rates. According to the Public Policy Institute of California, despite higher rates of pretrial detention compared to other states, California, under the current system, still has lower court appearance rates and higher rearrest rates.
(g) The California Supreme Court has noted that the excessive pretrial detention that results from California’s money bail system forces the state to bear the cost of housing and feeding arrestees that could be properly released. For instance, just six California counties spent $37,500,000 over a two-year period jailing people who were never charged or who had charges dropped or dismissed.
(h) By shifting from a system focused on pretrial detention to one focused on pretrial release, outcomes could be vastly improved. Studies show that the cost of supervising a person in the community pending trial is generally about 10 percent the cost of keeping them in jail. Several jurisdictions across the country have transitioned to release-based models that save taxpayers millions of dollars without sacrificing public safety.
(i) Modern technology provides an array of valuable tools that have already proven effective in the pretrial context, rendering many current practices obsolete. For instance, recent research suggests that simple text message reminders can significantly improve court appearance. The pretrial system in the County of Santa Clara, which relies on text message reminders, has maintained a 95-percent court appearance rate for defendants released before trial.
(j) In March 2021, the California Supreme Court ruled that conditioning freedom solely on whether an arrestee can afford bail is unconstitutional, and that in setting bail, judges must consider an arrestee’s ability to pay.
(k) California should be a leader in enacting meaningful bail reform that upholds the values of equal protection and due process without compromising the safety of victims and the general public.

SEC. 3.

 Section 1269b of the Penal Code is amended to read:

1269b.
 (a) The officer in charge of a jail in which an arrested person is held in custody, an officer of a sheriff’s department or police department of a city who is in charge of a jail or is employed at a fixed police or sheriff’s facility and is acting under an agreement with the agency that keeps the jail in which an arrested person is held in custody, an employee of a sheriff’s department or police department of a city who is assigned by the department to collect bail, the clerk of the superior court of the county in which the offense was alleged to have been committed, and the clerk of the superior court in which the case against the defendant is pending may approve and accept bail in the amount fixed by the warrant of arrest, schedule of bail, or order admitting to bail in cash or surety bond executed by a certified, admitted surety insurer as provided in the Insurance Code, to issue and sign an order for the release of the arrested person, and to set a time and place for the appearance of the arrested person before the appropriate court and give notice thereof.
(b) If a defendant has appeared before a judge of the court on the charge contained in the complaint, indictment, or information, the bail shall be in the amount fixed by the judge at the time of the appearance. If that appearance has not been made, the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant is required to appear until the statewide bail schedule is prepared and adopted by the Judicial Council pursuant to subdivision (c), at which point it shall be set pursuant to that statewide bail schedule.
(c) On or before January 1, 2023, and in each subsequent year, the Judicial Council shall prepare, adopt, and annually revise a statewide schedule of bail amounts for all felony, misdemeanor, and infraction offenses except Vehicle Code infractions. On January 1, 2023, each county’s uniform countywide bail schedule shall be deemed inoperative and shall not be used in fixing the amount of bail for any felony, misdemeanor, or infraction offense except Vehicle Code infractions and local municipal code and county ordinance violations.
(d) (1) Prior to setting bail, the court shall first consider whether nonfinancial conditions will reasonably protect the public and the victim and reasonably assure the arrestee’s presence at trial.
(2) If the court concludes that money bail is reasonably necessary to protect the public and the victim or reasonably assure the arrestee’s presence at trial, the court shall conduct an inquiry into the arrestee’s ability to pay and shall make a finding that the arrestee has the present ability to pay the amount of monetary bail without substantial hardship.
(3) For purposes of this subdivision, the following definitions apply:
(A) “Ability to pay” means the payer’s present ability with income or assets available to them to pay the specified amount without borrowing money, selling personal property, obtaining a loan, taking money from family or friends, accessing a means-tested public benefit in which they are enrolled, or paying a bond premium.
(B) “Substantial hardship” means a significant infringement on a payer’s ability to meet the basic necessities of life for themselves or their dependents. These basic necessities include, but are not limited to, reasonable expenses for food, shelter, communication, clothing, transportation, utilities, medical and dental care, childcare, and education.
(e) The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council in accordance with Section 40310 of the Vehicle Code.
(f) In adopting a uniform statewide schedule of bail pursuant to subdivision (c), the Judicial Council shall consider the seriousness of the offense charged and input from stakeholders, experts, and other interested parties.
(g) The statewide bail schedule shall contain a list of the offenses and the amounts of bail applicable for each offense. The Judicial Council shall send a copy of the statewide bail schedule to the presiding judge of each superior court, and the presiding judge shall provide a copy of the statewide bail schedule to the officer in charge of the county jail, to the officer in charge of each city jail within the county, and to each superior court judge and commissioner in the county.
(h) (1) Upon posting bail, the defendant or arrested person shall be discharged from custody as to the offense on which the bail is posted.
(2) All money and surety bonds so deposited with an officer authorized to receive bail shall be transmitted immediately to the judge or clerk of the court with jurisdiction. If, in the case of felonies, an indictment is filed, the judge or clerk of the court shall transmit all of the money and surety bonds to the clerk of the court.
(i) If a defendant or arrested person so released fails to appear at the time and in the court so ordered upon their release from custody, Sections 1305 and 1306 apply.

(j)Nothing in this section restricts the ability of the court to deny bail in accordance with Section 12 of Article I of the California Constitution, or to set, reduce, or deny bail in accordance with paragraph (3) of subdivision (f) of Section 28 of Article I of the California Constitution.

(j) Nothing in this section restricts the ability of the court to address bail consistent with the California Constitution or the United States Constitution.

SEC. 4.

 Section 1269d is added to the Penal Code, to read:

1269d.
 Costs relating to conditions of release from custody shall not be imposed on a person released on bail or their own recognizance pursuant to this chapter, including, but not limited to, fees relating to conditions of release or the imposition of conditions of release that require the person released to pay for those conditions.

SEC. 5.

 Section 1302.5 is added to the Penal Code, to read:

1302.5.
 (a) The court shall order a return of money or property paid to a bail bond licensee by or on behalf of the arrestee to obtain bail under any of the following circumstances:
(1) An action or proceeding against an arrestee who has been admitted to bail is dismissed.
(2) No charges are filed against the arrestee within 60 days of arrest.
(3) The arrestee has made all court appearances during the pendency of the action or proceeding against the arrestee.
(b) The bail bond licensee shall be entitled to retain a surcharge not to exceed 5 percent of the amount paid by the arrestee or on behalf of the arrestee.
(c) Money or property shall be returned pursuant to subdivision (a) within 30 days of the court order issued pursuant to subdivision (a) and shall be to the entity or person who paid the money or property to the bail bond licensee to obtain bail.
(d) A court shall order a return of money or property pursuant to this section only for a bail contract entered into on or after January 1, 2022.

SEC. 6.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to rapidly address the injustice of costs relating to money bail and conditions of pretrial release, it is necessary that this act go into effect immediately.