State legislatures consider and enact laws that address all aspects of pretrial policy, including citations, release eligibility, conditions of release, commercial bail bonding, victims’ rights and diversion. These legislative policies have an important role in providing fair, efficient and safe practices carried out by law enforcement and the courts.
Below is a synopsis of this state’s pretrial release laws as of March 2013 and any relevant legislative reports or audits. Recent enactments modifying these provisions can be found in NCSL’s pretrial enactments database.
Citation in Lieu of Arrest
Issuing a citation is presumptive for misdemeanors, however, citations cannot be issued for offenses involving domestic violence or abuse (unless the officer determines there is not a reasonable likelihood that the offense will continue) and for offenses that require a bail hearing. Citations can be issued at any time during the arrest process by law enforcement officers or their superiors. (Penal Code § 853.6)
Pretrial Release Eligibility
State constitution and statute provide a presumption of pretrial release. Pretrial release can be denied for capital offenses, felonies involving acts of violence, felony sexual assault, and felonies involving threats of bodily harm. (Const. art. I § 12; Penal Code § 1271 & 1270.5)
Guidance for Setting Release Conditions
State statute provides a presumption of pretrial release on personal recognizance for misdemeanor offenses. (Penal Code § 1270 (a))
Pretrial Release Conditions
Law allows release on personal recognizance. Common conditions of release include: commercial surety, cash deposit, other secured bond, supervision and additional requirements. Electronic monitoring is authorized for defendants detained for at least 30 days for misdemeanors or 60 days for any offense. (Penal Code § 1295, §1269b, § 1203.018, § 1270 & § 1318)
Bail Bond Agent Licensure
The Department of Insurance Commissioner regulates bail agents, bail permittees and bail solicitors. To be licensed, applicants must meet residency and prelicense requirements, and pass an exam. Bail permittees and solicitors must also meet continuing education requirements. Crimes for which a license can be denied or revoked include certain misdemeanors and felonies, and crimes that involve a misappropriation of money or property. (Ins. Code § 1802; Ins. Code § 1802.5; Ins. Code § 1803)
Bond Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 30 days to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider absences due to death, illness, insanity, or detention by military or civil authorities. (Penal Code § 1305)
Recovery agents do not need a license, but must carry a certificate to show completion of required education courses. Associations with bail agents must be disclosed, and recovery agents are required to wear identifying clothing and follow set guidelines when making arrests on private property. (Penal Code § 1299.01; Penal Code § 1299.09; Penal Code § 1299.07)
Victims’ Rights and Protections
Victims have the right to notification of, to attend and be heard at the pretrial release hearing. Victims also have a right to notification of pretrial release. Pretrial release hearings are required for: serious felonies; violent felonies except residential burglary; felony intimidation of a witness; rape of a spouse; corporal injury to a family member; threat of injury by an electronic communication device to a family member; stalking; domestic violence battery; violation of protection order by threat or use of violence or going to the workplace or residence of the protected party; and misdemeanor violation of a protection order involving domestic violence. Electronic monitoring can be ordered for violent crimes, only if the local jurisdiction adopts a policy. If a bail bond is forfeited, the funds can be applied to a restitution order upon the defendant’s conviction. (Const. art. I, § 28; Penal Code § 679.02(12); Penal Code § 1270.1(a) & § 853.6(2); Penal Code § 136.2(a)(7)(D); Penal Code § 1463.009)
Diversion programs authorized include: substance abuse, mental health, domestic relations and worthless check programs; and substance abuse problem-solving courts. Diversion is also authorized for the offenses enumerated in § 1001.1. (Penal Code § 1000 et. seq.; § 1001 et. seq.)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.