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18 Hastings L.J. 643 (1966-1967)
An Alternative to the Bail System: Penal Code Section 853.6

handle is hein.journals/hastlj18 and id is 683 raw text is: March, 1967]

California Penal Code, section 853.6 provides that a misdemeanant may be
released by a law enforcement officer1 if he signs a written promise to appear be-
fore a magistrate on a specified date.2 The issuance of a traffic citation m lieu of
jailing a suspected traffic violator is the most common application of tlus type of
procedure, but m the case of Penal Code violators, the procedure is rarely used.3
The purpose of tbis note is to discuss the problems raised by the statute's use,
examine the merits of the statute, and determine the reasons for its limited use.4
Where Penal Code Section 853.6 ts Used
A comparison of four representative Califorma law enforcement agencies5
using procedures based on section 853.6 illustrates that a police release procedure
may be adopted to the needs of most communities.
1 CAL. PN. CODE § 853.6 is not to be confused with CAL. PmN. CODE § 853.1 which
permits a county, city, or city and county to authorize law enforcement officers to re-
lease a suspected local ordinance violator on his promise to appear in court. See 44
CAlU. L. Bxv. 561 (1956). Many law enforcement officials have thought local authoriza-
tion was necessary before police could exercise the discretion provided In CAL. PEN.
CODE § 853.6. Letter From Thomas Cahill, Chief of the San Francisco Police Dep't, to
Gordon H. Winton, Jr., Chanman, Assembly Committee on Criminal Procedure, Feb. 26,
1964. Interviews With Jacob Jessup, Chief of Public Safety, Sunnyvale, and his Staff,
m  Sunnyvale, Calif., durng Nov. 1966 [hereinafter cited as Interview With Chief
Jessup]; Telephone Interview With Frank Coakley, District Attorney of Alameda County,
Oct. 20, 1966.
2 There are two sections in the Penal Code which permit the police to release a sus-
pect who is arrested for the violation of a Penal Code misdemeanor. CAL. PEN. CODE
§ 853.6(b) requires that the police gave the suspect a imminmum of five days before he
is required to make an appearance in court while CAL. PEN. CODE § 849(b)3 has no
such requirement. The Attorney General has suggested the following: The scope of the
procedures set forth m    853.6 is meant to be coextensive with the right to release
on citation given by section 849.  [Section 853.6 sets] forth the procedure to be fol-
lowed. 45 Ops. CAL. ATr'y GEN. 56, 58 (1965).
3 A recent survey suggests CAL. PEN. CODE § 853.6 is used less than one tenth of
one % of the time with Penal Code violators. 22 CAL. Assm. INTrEarm  Comm. BEP.,
No. 8 ON CnmuxAL PaocmxuR     95 (1965). The writer discussed the report with Dr.
A. LaMont Smith, Special Consultant on Arrest Records, Bail, and Citation Procedure to
the Assembly Interim Committee on Criminal Procedure, on Dec. 1, 1966 in Berkeley,
Calif. Dr. Smith did not believe that the use of the statute with relation to Penal Code
violators had increased substantially n the last two years.
4 There is little case law on this subject. How and when CAL. PEN. CODE § 853.6
should be used is a decision for the policeman, not the court. Therefore the statute can
be analyzed only by reference to case studies and personal interviews. For a discussion
of the importance of police discretion an the administration of criminal justice and the
necessity for a closer examination of its role see Packer, Who Can Police the Police, VIII
N.Y. Rev. of Books No. 3, Sept. 8, 1966, p. 10.
5 The four law enforcement agencies investigated were the Pittsburg Police Dep't,
Sunnyvale Public Safety Dept, Richmond Police Dep't, and the Contra Costa County
Sheriff's Office. The information on the procedure followed an Pittsburg was based on


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