CALIFORNIA WESTERN SCHOOL OF LAW BAIL PROJECT

1
CALIFORNIA WESTERN SCHOOL OF LAWBAIL PROJECT

• Professor Lawrence M. Benner, Founder
• Coleen M. Cusack, Director

2
BAIL Federal Law

• United States Constitution
• Amendment VIII
• Excessive bail shall not be required, nor
  excessive fines imposed, nor cruel and unusual
  punishments inflicted.

3
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• Southern District of California
• 12 Defendants / 50K bail for each
• Smith Act
• advocating violent overthrow of government
• 4 persons previously convicted of Smith Act
  forfeited bond
• 5 year, 10,000 fine maximum

4
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• Relief in this type of case must be speedy if it
  is to be effective.
• To infer from the fact of indictment alone a need
  for bail in an unusually high amount is an
  arbitrary act.

5
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• Chief Justice Vinson, writing for the Court
• Unless the right to bail before trial is
  preserved, the presumption of innocence, secured
  only after centuries of struggle, would lose its
  meaning.

6
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• If bail in an amount greater than that usually
  fixed for serious charges of crimes is required
  in the case of any of the petitioners, that is a
  matter to which evidence should be directed in a
  hearing so that the constitutional rights of each
  petitioner may be preserved.

7
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• The proper procedure for challenging bail as
  unlawfully fixed is by motion for reduction of
  bail and appeal to the Court of Appeals from an
  order denying such motion.

8
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• Concurrence of Justices Jackson and Frankfurter
• Each defendant stands before the bar of justice
  as an individual. Each accused is entitled
  to any benefits due to his good record, and
  misdeeds or a bad record should prejudice only
  those who are guilty of them. The question when
  application for bail is made relates to each
  ones trustworthiness to appear for trial and
  what security will supply reasonable assurance of
  his appearance.

9
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• Concurrence of Justices Jackson and Frankfurter
• The spirit of the bail procedure is to enable
  defendants to stay out of jail until a trial
  has found them guilty. Without this conditional
  privilege, even those wrongly accused are
  punished by a period of imprisonment while
  awaiting trial and are handicapped in consulting
  counsel, searching for evidence and witnesses and
  preparing a defense.

10
BAIL Federal Law

• Stack v. Boyle (1951) 342 U.S. 1
• Concurrence of Justices Jackson and Frankfurter
• Admission to bail always involves a risk that the
  accused will take flight. That is a calculated
  risk which the law takes as the price of our
  system of justice. We know that Congress
  anticipated that bail would enable some escapes,
  because it provided a procedure for dealing with
  them. Fed. Rules Crim. Proc. 46(f).

11
BAIL Federal Law

• 18 U.S.C. 3142
• (g) Factors To Be Considered
• (1) the nature and circumstances of the offense
  charged
• (2) the weight of the evidence against the
  person
• (3) the history and characteristics of the
  person
• (4) the nature and seriousness of the danger to
  any person or the community that would be posed
  by the persons release.

12
BAIL Federal Law

• U.S. v. Salerno (1987) 481 U.S. 739
• Bail Reform Act authorization of pretrial
  detention on basis of future dangerousness
  constituted permissible regulation
• does not violate substantive or procedural due
  process
• is not facially unconstitutional as violative of
  Eighth Amendment

13
BAIL Federal Law

• U.S. v. Salerno (1987) 481 U.S. 739
• Bail Reform Act authorization of pretrial
  detention on basis of future dangerousness
  constituted permissible regulation
• does not violate substantive or procedural due
  process
• is not facially unconstitutional as violative of
  Eighth Amendment

14
BAIL Federal Law

• U.S. v. Salerno (1987) 481 U.S. 739
• Dissent of Justices Marshall and Brennan
• This case brings before the Court for the first
  time a statute in which Congress declares that a
  person innocent of any crime may be jailed
  indefinitely, pending the trial of allegations
  which are legally presumed to be untrue, if the
  Government shows to the satisfaction of a judge
  that the accused is likely to commit crimes,
  unrelated to the pending charges, at any time in
  the future.

15
BAIL California Law

• California Constitution Article 1, 12
• Right to Bail, except
• Capital crimes
• Felony offenses involving acts of violence
• Felony offenses involving threat of bodily harm
• when the facts are evident or the presumption
  great.

16
BAIL California Law

• California Constitution Article 1, 12
• Factors to consider in fixing bail
• Seriousness of the offense charged
• Previous criminal record of the defendant
• Probability of his or her appearing at the trial
  or hearing of the case.
• Release on own recognizance is discretionary.

17
BAIL California Law

• California Penal Code 815a
• Warrant endorsement of amount of bail
• Bail is fixed at the time warrant issued
• Bail is to be reasonable and sufficient for the
  appearance of the defendant

18
BAIL California Law

• California Penal Code 825
• Appearance before magistrate . . .
• Taken to magistrate within 48 hours, excluding
  Sundays and holidays.
• Wednesday arrests arraigned by Friday
• Right of attorney to visit prisoner statutory
  penalties (500) for violation

19
BAIL California Law

• California Penal Code 859
• Charge of felony by complaint
• Taken before magistrate without unnecessary
  delay
• Magistrate provide copy of complaint, inquire
  regarding counsel, continue to retain attorney,
  appoint counsel if requested.

20
BAIL California Law

• California Penal Code 859a
• Non-capital felony plea procedure
• Magistrate shall read complaint to defendant
• Magistrate shall ask defendant if he or she
  pleads guilty or not guilty
• Provisions for plea of guilty and consequent
  setting of bail

21
BAIL California Law

• California Penal Code 859b
• Felony not guilty plea
• Preliminary examination at least two days and
  no more than ten court days of arraignment
• Mandates dismissal of complaint when time
  constraints not met

22
BAIL California Law

• California Penal Code 859c
• Superior Court review of challenged ruling or
  order
• Procedures under this code that provide for
  superior court review of a challenged ruling or
  order made by a judge shall be performed by a
  judge other than the judge who originally
  made the ruling or order, unless agreed to by the
  parties.

23
BAIL California Law

• California Penal Code 1268
• Admission to Bail defined.
• Admission to bail is the order of a competent
  Court or magistrate that the defendant be
  discharged from actual custody upon bail.

24
BAIL California Law

• California Penal Code 1269c
• Increase or reduction of bail in schedule
• If arrested without a warrant
• Peace officer can submit declaration to increase
  bail if reasonable cause exists to believe
  that the amount of bail set forth in the schedule
  . . . is insufficient to assure defendants
  appearance or to assure the protection of victim

25
BAIL California Law

• California Penal Code 1269c (cont.)
• Increase or reduction of bail in schedule
• If arrested without a warrant
• Defendant, personally or through attorney,
  friend, or family member, also may make
  application to the magistrate for release on bail
  lower than that provided in the schedule of bail
  or on his or her own recognizance.

26
BAIL California Law

• California Penal Code 1269c
• Increase or reduction of bail in schedule
• If arrested without a warrant
• Magistrate authorized to set bail in an amount
  that he or she deems sufficient to assure the
  defendants appearance or to assure the
  protection of a victim and to set bail on the
  terms and conditions deemed appropriate or
  authorize release on the defendants own
  recognizance.

27
BAIL California Law

• California Penal Code 1270
• Release on recognizance
• Discretionary release for non-capital offenses.
• Mandatory release for misdemeanor offenses unless
  own recognizance release will
• compromise public safety and
• not reasonably assure the appearance of the
  defendant as required.

28
BAIL California Law

• California Penal Code 1270.1
• Violent felonies threats hearing.
• Violent and serious felonies (see chart) except
  for residential burglary (PC 460(a).)
• 136.1, 262, 273.5, 422 (felony) or 646.9,
  243(a)(1)
• 273.6 if detained person has made threats to kill
  or harm, engaged in violence against or has gone
  to the residence or workplace of the protected
  party.

29
BAIL California Law

• California Penal Code 1270.1 (cont.)
• Violent felonies threats hearing.
• Hearing required before detained person is held
  on bail higher or lower than bail schedule or
  released on own recognizance
• Two court-day written notice and opportunity to
  be heard
• Judge required to state reasons for departing
  from bail schedule.

30
BAIL California Law

• California Penal Code 1270.1 (cont.)
• Violent felonies threats hearing.
• Court shall consider evidence of past
  appearances, maximum possible sentence and the
  danger that may be posed to others
• In deciding release on own recognizance, court
  shall consider potential danger to other persons,
  including any threats made.
• Court shall also consider any evidence offered by
  detained re ties to the community and ability to
  post bond.

31
BAIL California Law

• California Penal Code 1270.2
• Automatic Bail Review.
• Defendant is entitled to an automatic review of
  the order fixing the amount of the bail by the
  judge or magistrate having jurisdiction of the
  offense.
• Not later than 5 days from time of original order
  fixing bail on original accusatory pleading.
• Defendant may waive this review.

32
BAIL California Law

• California Penal Code 1270.5
• Capital offenses nonbailable.
• A defendant charged with an offense punishable
  with death cannot be admitted to bail, when the
  proof of his or her guilt is evident or the
  presumption thereof great.
• The finding of an indictment does not add to the
  strength of the proof or the presumptions to be
  drawn therefrom.

33
BAIL California Law

• California Penal Code 1271
• Before conviction bail as of right.
• If the charge is for any other offense, he may
  be admitted to bail before conviction, as a
  matter of right.

34
BAIL California Law

• California Penal Code 1273
• Nature and conditions of bail.
• Defendant may be admitted to bail
• At initial arraignment
• Preliminary examination
• Arraignment on indictment
• After conviction
• If only a fine and promises to pay
• If custody imposed that he will surrender when
  appeal is completed.

35
BAIL California Law

• California Penal Code 1274
• Bail discretionary notice.
• When bail is a matter of discretion (capital
  cases), reasonable notice to the District
  Attorney required.

36
BAIL California Law

• California Penal Code 1275
• Setting, reducing or denying bail.
• Judge shall consider
• The protection of the public
• The previous criminal record of the defendant
• The seriousness of the offense charged and
• The probability of defendant making court
  appearances
• The public safety shall be the primary
  consideration.

37
BAIL California Law

• California Penal Code 1275 (cont.)
• Setting, reducing or denying bail.
• In considering seriousness of offense charged,
  judge shall include consideration of
• Alleged injury to the victim
• Alleged threats to the victim or witness
• Alleged use of a firearm or other deadly weapon
• Alleged use or possession of controlled
  substances by defendant

38
BAIL California Law

• California Penal Code 1275 (cont.)
• Setting, reducing or denying bail.
• In considering drug offenses, judge shall
  consider the following
• Alleged amounts of controlled substances
  involved and
• Whether defendant currently on bail for an
  alleged drug offense.

39
BAIL California Law

• California Penal Code 1275 (cont.)
• Setting, reducing or denying bail.
• Before court reduces bail below bail schedule on
  serious or violent felony court shall make a
  finding of unusual circumstances and shall state
  those facts on the record.
• Unusual circumstances does not include fact
  that defendant has made prior court appearances
  and has not committed any new offenses.

40
BAIL California Law

• California Penal Code 1275.1
• Bail feloniously obtained.
• Bail shall not be accepted unless judge satisfied
  that no portion of the consideration was
  feloniously obtained.
• Hold ordered if
• Peace officer files declaration
• Prosecutor files declaration
• Judge has probable cause

41
BAIL California Law

• California Penal Code 1275.1 (cont.)
• Bail feloniously obtained.
• Once hold imposed, defendant bears burden, by a
  preponderance of the evidence, to show that no
  part of consideration offered for bail was
  feloniously obtained.
• Hearing to ascertain source of funds can be
  ordered closed to public.

42
BAIL California Law

• California Penal Code 1277 and 1281a
• Authority to admit to bail.
• By magistrate who holds defendant to answer at
  preliminary examination
• By any magistrate who has the power to issue the
  writ of habeas corpus.
• Any superior court judge within the county where
  cause is pending.

43
BAIL California Law

• California Penal Code 1318
• Release Agreement.
• Defendant shall not be released on his or her own
  recognizance until defendant signs agreement
• Promising to appear as required
• Promising to obey reasonable conditions
• Promising not to depart state
• Agreeing to waive extradition
• Acknowledging understanding of consequences and
  penalties for violation of conditions of release.

44
BAIL California Law

• California Penal Code 1318.1
• PreTrial Services.
• Investigative report shall be prepared for all
  violent felonies and felony DUIs
• Written verification of outstanding warrants
• Written verification of failures to appear
• Written verification of criminal record
• Written verification of defendants residence

45
BAIL California Law

• California Penal Code 1319
• Violent felony.
• May not be released on own recognizance until
  hearing in open court implemented consistent with
  time constraints in 825.
• Defendant shall not be released on OR where it
  appears, by clear and convincing evidence, failed
  to appear for prior felony matter.

46
BAIL California Law

• California Penal Code 1319 (cont.)
• Violent felony.
• Court shall consider
• Any outstanding felony warrants
• Information presented in PreTrial report (failure
  to receive report shall not preclude release)
• Any other information presented by DA.
• Court shall state reasons for decision.

47
BAIL California Law

• California Penal Code 1319.5
• Commission of new offense.
• Currently on felony probation or felony parole.
• Person who has 3 FTAs within last 3 years and
  is arrested for
• Any felony
• Violation of California Street Terrorism
  Enforcement and Prevention Act
• Any violation of Chapter 9 (240 et. al.)
• Section 484 (theft)
• Section 459 (burglary)
• Any offense where defendant is alleged to have
  been armed with or to have personally used a
  firearm.

48
BAIL California Law

• California Penal Code 1320.5
• Failure to appear after release on bail.
• If felony offense, wobbler violation.
• Willful failure to appear within 14 days of the
  date assigned for appearance may be found to have
  been for the purpose of evading the process of
  the court.

49
BAIL California Law

• California Penal Code 1320
• Failure to appear after release on own
  recognizance.
• If misdemeanor offense, misdemeanor violation.
• If felony offense, wobbler violation.
• It shall be presumed that a defendant who
  willfully fails to appear within 14 days of the
  date . . . intended to evade the process of the
  court.

50
BAIL California Law

• Van Atta v. Scott (1980) 27 Cal. 3d 424.
• OR Project in San Francisco
• Half of all detainees unable to post bail and not
  released on own recognizance
• The people who are being released are the
  affluent. The poor are staying in jail.
• When more detainees released pending trial,
  failure-to-appear rate remained constant (only
  2).

51
BAIL California Law

• Van Atta v. Scott (1980) 27 Cal. 3d 424.
• Denial of pretrial release
• curtails detainees ability to adequately prepare
  a defense, gather evidence and interview
  witnesses
• impairs consultation with an attorney
• location inconvenient
• lack of privacy
• ability to retain may be limited due to loss of
  employment and/or income

52
BAIL California Law

• Van Atta v. Scott (1980) 27 Cal. 3d 424.
• Denial of pretrial release (cont.)
• prejudices detainee when brought to the courtroom
  in jail clothing, in handcuffs or custodial
  status otherwise made obvious
• inflicts a direct grievous loss upon the
  detainee
• may imperil detainees job, interrupt source of
  income, impair family relationships
• constitutes a drain on public funds

53
BAIL California Law

• Van Atta v. Scott (1980) 27 Cal. 3d 424
• BURDEN OF PRODUCTION
• Prosecutor required to produce detainees record
  of appearance at prior court hearings and the
  severity of the sentence he faces.
• Detainee required to produce evidence of ties to
  community

54
BAIL California Law

• Van Atta v. Scott (1980) 27 Cal. 3d 424
• POSSIBLE DISTORTION
• Difficult for detainee to gather tangible
  evidence of community ties
• Deliberate overcharging gives the court the
  false impression that detainee eligible for a
  greater sentence than likely and provides
  inaccurate picture of detainees likelihood of
  fleeing the jurisdiction

55
BAIL California Law

• Van Atta v. Scott (1980) 27 Cal. 3d 424
• PROSECUTORIAL BURDEN OF PROOF
• Bears the burden of proof concerning the
  detainees likelihood of appearing at future
  court proceedings

56
BAIL California Law

• Dant v. San Francisco (1998) 61 Cal. App. 4th 380
• Requesting release on own recognizance
• A judge or bail commissioner is on duty at all
  times to determine whether an OR release is
  appropriate or whether the bail . . . set in the
  . . . schedule should be lowered.

57
BAIL California Law

• Dant v. San Francisco (1998) 61 Cal. App. 4th 380
• Requesting release on own recognizance
• Penal Code 1270.1 places limits on OR release for
  certain offenses requiring, first, a hearing in
  open court with two-day written notice and
  opportunity to be heard to the prosecutor
• Notice provisions do not apply at first appearance

58
BAIL California Law

• In re York, In re Cadenaz, In re Atkins (1995) 9
  Cal. 4th 113
• Fourth Amendment restrictions
• Reasonableness of an OR release condition that
  implicates Fourth Amendments rights depends upon
  both the intrusiveness of the state conduct
  authorized by the condition and the strength of
  the states interest in imposing such a
  restriction in the particular circumstances.

59
BAIL California Law

• In re York, In re Cadenaz, In re Atkins (1995) 9
  Cal. 4th 113
• Notes that Underwood case upon which the Van Atta
  case relies is no longer valid given that the
  Constitutional article which controlled in
  Underwood was subsequently amended.

60
BAIL California Law

• In re Nordin (1983) 143 Cal. App. 3rd 538.
• Denial of bail
• Prediction of the likelihood of certain conduct
  necessarily involves a margin of error, but is an
  established component of our pretrial release
  system. Trial judges have been engaged in
  predicting the likelihood of flight for all
  defendants, capital and noncapital, and have
  predicted the likelihood of recidivism for
  capital offenses since the Judiciary Act of 1789.
  (reference omitted.)

61
BAIL California Law

• In re Christie (2001) 92 Cal. App. 4th 1105.
• Statement of Reasons on Record
• Here, . . .the trial court neglected to refer to
  any operative facts and solely invoked
  conclusions. It made but a vague reference to
  its knowledge of the record and simply concluded
  that Christie, if released, posed a danger to the
  youth of the community. The trial court made no
  mention of the probability that Christie would
  appear at further proceedings. (1275, subd.
  (a).)

62
BAIL California Law

• In re Hambarian (2002) 143 Cal. App. 3rd 538.
• Unpublished decision.
• Example of excessive bail.
• Prior criminal record does not include prior
  bad acts.
• Wealth as a shield AND sword
• Seriousness of offense (see bail schedule)

63
APPELLATE BRIEF DELANEY

• Relevant bail factors
• Evidence of Past Court Appearances and Personal
  Responsibility
• Maximum Potential Sentence that Could Be Imposed
• Danger that May Be Posed to Other Persons if
  Released
• Ties to the Community
• Their Ability to Post Bond
• The Protection of the Public
• The Seriousness of the Offense Charged
• The Previous Criminal Record of the Defendant
• The Probability of Their Appearing at Trial

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APPELLATE BRIEF REEDER

• Fixing a high bail to protect public safety is a
  very odd proposition. The fundamental premise
  would appear to be that poor people, such as
  this petitioner, who cannot afford high bails,
  are somehow more dangerous to the general public
  than are rich people, who are accused of
  identical wrongdoing, but who can afford to post
  high bails.
• Constitutionality of Preventive Detention
• Discusses applicability of Van Atta