I. C O U N C I L O F T H E D I S T R I C T O F C O L U M B I A C O M M I T T E E O N T H E J U D I C I A R Y A N D P U B L I C S A F E T Y D R A F T C O M M I T T E E R E P O R T 1350 Pennsylvania Avenue, NW, Washington, DC 20004

TO: All Councilmembers

FROM: Councilmember Tommy Wells, Chairperson Committee on the Judiciary and Public Safety

DATE: June 19, 2014

SUBJECT: Report on Bill 20-323, “Post-Arrest Process Clarification Amendment Act of 2014”1

The Committee on the Judiciary and Public Safety, to which Bill 20-323, “Post-Arrest Process Clarification Amendment Act of 2014” was referred, reports favorably thereon with amendments, and recommends approval by the Council.

CONTENTS

I . B A C K G R O U N D A N D N E E D

INTRODUCTION

Bill 20-323, the “Post-Arrest Process Clarification Amendment Act of 2013” was introduced on June 4, 2013 by Chairman Mendelson and Councilmember Wells, and co- sponsored by Councilmember Cheh. On November 21, 2013, the Committee on the Judiciary and Public Safety held a public hearing on the bill. A summary of the testimony provided at the hearing is found below in section V.

Bill 20-323 would clarify the post-arrest process in the District of Columbia.2 The Committee made three amendments to the introduced bill. First, the committee print clarifies that nothing contained in Bill 20-323 should be construed to create a private right of action or give rise to any rights enforceable by injunction, mandamus, or otherwise. The two other amendments clarify that the term “forfeiture,” as used Subsection 1004.4 of Chapter 10 of Title 1 of the District of Columbia Municipal Regulations and Section 266(b)(1)(C) of the Human Rights Act

1 As introduced, the bill was named the “Post-Arrest Process Clarification Amendment Act of 2013”; this committee print renames the bill to reflect the current year.

2 The “post-arrest process” refers to the procedures applicable between the arresting officer’s completion of an arrest and the arrestee’s initial appearance before a judicial officer. Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 2 of 9 of 1977, shall not include any forfeiture of collateral which is made pursuant to the post-and- forfeit procedure.

BACKGROUND

Bill 20-323, “Post-Arrest Process Clarification Amendment Act of 2014” was developed with the assistance of the Council for Court Excellence, and its DC Misdemeanor Arrest and Pretrial Release Project Subcommittee. The Subcommittee included representatives from the Superior Court of the District of Columbia, the United States Attorney’s Office for the District of Columbia, the Public Defender Service for the District of Columbia, the Pretrial Services Agency for the District of Columbia, the Metropolitan Police Department, and the Office of the Attorney General for the District of Columbia.

This legislation embodies the principle that arrested persons, so long as they do not pose a danger to the community or a flight risk, should be released from custody on their own recognizance according to the least restrictive options available, and not based on an amount of money they are able to post. The post-arrest release options codified in this bill, however, will only be available for a limited number of non-violent, low-level misdemeanors and only to individuals who pose no risk to public safety. Furthermore, post-arrest release procedures will not be available to individuals who commit violent crimes, felonies, or who are currently on probation, parole, or supervised release.

The District of Columbia is considered a model for the rest of the nation with respect to its pretrial release standards. Our current system, however, is governed primarily by custom and practice, which has caused some confusion for the public, attorneys, and law enforcement officers. This legislation would bring clarity and transparency to all stages of the post-arrest and pretrial release processes. By clarifying the practices of our post-arrest release system, this legislation ensures that the law is better understood and applied in a more consistent manner. Additionally, arrests will be processed more quickly, freeing up much needed resources for our law enforcement agencies and courts.

According to the report by the Council for Court Excellence, approximately 42,500 arrests were processed through MPD’s central booking system in 2012.3 Although 17,000 individuals availed themselves of post-arrest release procedures last year, individuals in 61% of all arrests were kept in custody until they were provided a hearing in court.4 As a result, many of these individuals remain in custody for hours or even days until they can be processed.5 For example, individuals arrested on a Saturday afternoon could remain in custody until sometime the following Monday afternoon, even if the prosecuting authority decides not to formally pursue

3 Council for Court Excellence, “Clarifying the Post-Arrest Process in the District of Columbia: Report, Recommendations, and Proposed Legislation,” p. 6.

4 Id.

5 Unlike many other jurisdictions that have procedures to set bail at all hours, the Superior Court for the District of Columbia schedules matters every day except Sundays. Arrests that have not been processed by a certain “cut-off” time are held over until the following day. Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 3 of 9 a criminal case in court. Accordingly, this legislation encourages the release of arrested persons on citation and ensures that individuals are held in custody only when necessary.

Stay-Away Orders and Arrests Without Probable Cause

When someone is released on citation, there is generally a two-to-three week period between the date of the arrest and the date for arraignment in court. During this time, prosecutors often seek “stay-away orders” that require the arrestee to stay away from either the location of the offense, a victim, or a witness to the offense. One concern about expanding the practice of citation release is that arrestees might violate stay-away orders, thereby risking harm to persons and/or evidence. In order to address this concern, Bill 20-323 permits the arrest without a warrant of a person when there is probable cause to believe that the person was released on citation and that person violated a stay-away order. The Council for Court Excellence indicated that this proposal was essential in getting concurrence from the prosecutors to expand eligibility for citation release.6

Processing Arrests

The primary purpose of this legislation is to clarify post-arrest procedures, which have historically been governed largely by custom and practice. Bill 20-323 will ensure that an arrestee will have his or her arrest processed expeditiously, consistent with assuring the safety of the community, and consistent with assuring the arrestee’s appearance in court.

Field Arrests

In lieu of taking a person into custody, a law enforcement officer in the District of Columbia may issue a “field arrest” form to a person whom she has arrested without a warrant. Field arrests are described in MPD Standard Operating Procedures – PD Form 61D (Violation Citation), which sets forth the circumstances under which field arrests may be used. Issuance of a field arrest form requires the arrestee to appear at a police station within 15 days in order to complete the booking process. If the person fails to appear within the 15-day time period, the officer issuing the field arrest form is responsible for bringing the matter to the prosecutor’s attention. Under such circumstances, the prosecutor has discretion to request that the court issue an arrest warrant in order for the arrestee to be taken into custody to resolve the matter.

Releasing Officials

Bill 20-323 creates a new position called a “releasing official,” a law enforcement official who determines if an arrestee is eligible for citation release or is eligible to utilize the post-and- forfeit process. Specifically, “releasing official” refers to an official of the Metropolitan Police Department or another law enforcement agency operating in the District of Columbia appointed by the judges of the Superior Court. Under this legislation, releasing officials will have the authority to act as a clerk of the court with authority to issue citations, take money, and take

6 Council for Court Excellence, “Clarifying the Post-Arrest Process in the District of Columbia: Report, Recommendations, and Proposed Legislation,” p. 18. Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 4 of 9 bonds imposed upon the issuance of a bench warrant from persons charged with an offense in Superior Court.

In addition, releasing officials will have the authority to direct a person who is to be released on citation, as a condition of that release, to stay away from a particular place and to have no contact with a victim of or witness to the offense until her appearance before a judicial officer. If the arrestee refuses to agree to the terms of a stay-away order, the releasing official must deny citation release.

Releasing officials will not receive compensation other than his or her regular salary, will be subject to the orders and rules of the Superior Court, and may be removed as the clerk at any time by the judges of the Superior Court.

Post-and-Forfeit Procedure

In addition to citation release, some arrestees are allowed to avail themselves of the post- and-forfeit procedure. “Post-and-forfeit” refers to the practice in which a person charged with certain low level offenses may pay an established collateral amount and then agree to forfeit such collateral. By availing herself of this procedure, a formal criminal case will not be filed in court against the person, but the charge does remain on his arrest record. While the post-and-forfeit procedure is already described in D.C. Official Code § 5-335.01, this legislation clarifies that a person is only eligible for post-and-forfeit if that person is also eligible for citation release.

Private Right of Action

Bill 20-323, as introduced, did not address whether the bill created any private right or private remedy. At the hearing, the Committee received testimony suggesting that the bill should be amended to clarify that no such right would be created by the legislation.7 Accordingly, the amended bill clarifies that nothing in the legislation shall be construed to create any private right of action or give rise to any rights enforceable by injunction, mandamus, or otherwise. This language, however, should not be interpreted to take away any rights that currently exist under District law.8

Definition of Forfeiture

Bill 20-323 was also amended to clarify that the term “forfeitures,” as used in the Human Rights Act of 1977 and Subsection 1004.4 of Chapter 10 of Title 1 of the District of Columbia Municipal Regulations, shall not include any forfeiture of collateral which is made pursuant to the “post-and-forfeit procedure” as that term is defined in the First Amendment Rights and Police Standards Act of 2004. This amendment ensures that the arrest record of an individual

7 Testimony of Dave Rosenthal, p. 5.

8 Testimony of Richard K. Gilbert, p. 1-2 (noting that judicial officers should be immune from suit for discretionary decisions, such as their pretrial release and detention decisions, but that law enforcement officers should not be immune for non-discretionary decisions, such as an unlawful detention or other injuries an individual might sustain while in custody). Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 5 of 9 who posts and forfeits collateral, pursuant to § 5-335.01, will not be released in the criminal history record provided by the Metropolitan Police Department. This amendment was proposed by members of the DC Misdemeanor Arrest and Pretrial Release Project Subcommittee of the Council for Court Excellence in order to “promote clarity, fundamental fairness, and greater efficiencies to the record sealing process” in the District of Columbia.9

For all the reasons explained above, the Committee recommends approval of this bill as amended.

I I . L E G I S L A T I V E C H R O N O L O G Y

June 4, 2013 Bill 20-323, “Post-Arrest Process Clarification Amendment Act of 2013,” is introduced by Chairman Mendelson and Councilmember Wells, and cosponsored by Councilmember Cheh.

June 4, 2013 Bill 20-323 is referred to the Committee on the Judiciary and Public Safety. The Committee renamed the legislation the “Post-Arrest Process Clarification Amendment Act of 2014.”

June 14, 2013 Notice of Intent to Act on Bill 20-323 is published in the District of Columbia Register.

October 4, 2013 Notice of a Public Hearing is published in the District of Columbia Register.

November 21, 2013 The Committee on the Judiciary and Public Safety holds a public hearing on Bill 20-323.

June 19, 2014 The Committee on the Judiciary and Public Safety marks-up Bill 20-323.

I I I . P O S I T I O N O F T H E E X E C U T I V E

Dave Rosenthal, Senior Assistant Attorney General, Public Safety Division, Office of the Attorney General of the District of Columbia, testified in support of Bill 20-323, stating that the bill would safely increase the number of arrestees that can be released on citation pending their first court appearance. Mr. Rosenthal stated he strongly believed that the legislation should not create a private right or a private remedy. Accordingly, Mr. Rosenthal suggested amending the bill to clarify this point and to avoid needless litigation.

9 Letter from Clifford T. Keenan, Chair, CCE Post-Arrest Project Subcommittee, May 28, 2014. Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 6 of 9

I V . C O M M E N T S O F A D V I S O R Y N E I G H B O R H O O D C O M M I S S I O N S The Committee received no testimony or comments from Advisory Neighborhood Commissions. V . S U M M A R Y O F T E S T I M O N Y A N D S T A T E M E N T S

The Committee on the Judiciary and Public Safety held a public hearing on Bill 20-323 on Thursday, November 21, 2013. The testimony summarized below is from that hearing. A copy of the witness list is attached to this report; the video recording of the hearings (available online at http://oct.dc.gov/services/on_demand_video/channel_13.asp) is incorporated by reference. A copy of submitted testimony is part of the hearing record and is available through the Office of the Secretary.

The following witnesses testified at the hearing:

June B. Kress, Executive Director, Council for Court Excellence, testified in support of Bill 20-323, stating that the bill seeks to bring clarity to the public and law enforcement officials about the pretrial release process, which is not fully described in the District of Columbia Official Code.

Clifford T. Keenan, Director, Pretrial Services Agency for the District of Columbia, testified in support of Bill 20-323, stating that the bill represents a consensus of the Misdemeanor Arrest and Pretrial Release Subcommittee of the Council for Court Excellence. Mr. Keenan identified three main benefits that Bill 20-323 would provide. First, the bill would provide more fairness and transparency to persons who have been arrested for certain minor offenses. Second, it would provide clarity to the criminal justice practitioners, such as police officers, prosecutors, and defense attorneys, who are responsible for handling these matters. Finally, the bill would enhance community safety while promoting pretrial justice for a wider array of persons who have been arrested for such minor offenses.

Kristopher Baumann (no written testimony), Chairman, Fraternal Order of Police for the Metropolitan Police Department, stated that he did not oppose Bill 20-323, but he had a number of questions about how the bill would be implemented. Specifically, Chairman Baumann expressed concern about how deep into the post-arrest process the bill would go, as he believes that the Council should not over-legislate police practices regarding the post-arrest process.

Richard K. Gilbert, Co-Chair Legislative Committee, District of Columbia Association of Criminal Defense Lawyers, testified in support of Bill 20-323. Mr. Gilbert suggested that if language is added to the bill to clarify that the legislation does not create any private cause of action, the proposed language should not confer immunity for unlawful detention or for any injuries an individual may sustain while in custody which may result from negligence or intentional conduct on the part of the police. In addition, Mr. Gilbert encouraged the Council for the District of Columbia to consider what current criminal offenses may safely be converted to civil violations. Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 7 of 9

V I . I M P A C T O N E X I S T I N G L A W

Bill 20-323 makes several amendments to the District of Columbia Official Code. First, the bill amends Title 23 of the D.C. Code in order to clarify that law enforcement officers may arrest a person without a warrant if the officer has probable cause to believe the person has been released on citation and has violated a stay-away order. Second, the bill amends section 1110 of Title 23 of the D.C. Code to provide the judges of the Superior Court with the authority to appoint releasing officials. Third, the bill amends section 302 of the First Amendment Assembly Enforcement and Procedure Act of 2004, effective April 12, 2005 (D.C. Law 15-352; D.C. Official Code § 5-335.01), to clarify that the use of the post-and-forfeit procedure should not be considered a criminal conviction and that the use of the post-and-forfeit procedure may not be relied upon by any court or agency in any subsequent proceeding or action. Finally, the bill clarifies that the term “forfeiture,” as used in section 266 of the Human Rights Act of 1977, effective December 13, 1977 (D.C. Law 2038; D.C. Official Code § 2-1402.66), and subsection 1004.4 of Chapter 10 of Title 1 of the District of Columbia Municipal Regulations, shall not include any forfeiture of collateral which is made pursuant to the “post-and-forfeit procedure” as that term is defined in the First Amendment Rights and Police Standards Act of 2004.

V I I . F I S C A L I M P A C T

The attached DATE Fiscal Impact Statement from the Chief Financial Officer states that funds are sufficient to implement Bill 20-323. This legislation requires no additional resources or personnel.

V I I I . S E C T I O N - B Y - S E C T I O N A N A L Y S I S

Section 1 States the short title of Bill 20-323.

Section 2 Provides definitions of terms used in the bill. Adds a new subsection to D.C. Code § 23-581 to allow law enforcement officers to arrest a person without a warrant if the officer has probable cause to believe the person has been released on citation and has violated a stay-away order.

Describes the circumstances under which an arrestee would be eligible for citation release and the post-and-forfeit procedure. Explains the procedures for issuing a field arrest form. Describes the authority of releasing officials.

Amends D.C. Code § 23-1110 to provide the judges of the Superior Court with the authority to appoint releasing officials. Further describes the authority of releasing officials.

Section 3 Amends D.C. Code § 5-335.01 to clarify that the use of the post-and-forfeit procedure should not be considered a criminal conviction and that the use of the post-and-forfeit procedure may not be relied upon by any court or agency in any Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 8 of 9 subsequent proceeding or action. Describes when an arrestee shall be eligible for the post-and-forfeit procedure and the process by which someone will avail themselves of such procedures.

Section 4 Clarifies that the term “forfeitures,” as used in the Human Rights Act of 1977, shall not include any forfeiture of collateral which is made pursuant to the “post- and-forfeit procedure” as that term is defined in the First Amendment Rights and Police Standards Act of 2004.

Section 5 Clarifies that the term “forfeitures,” as used in Subsection 1004.4 of Chapter 10 of Title 1 of the District of Columbia Municipal Regulations, shall not include any forfeiture of collateral which is made pursuant to the “post-and-forfeit procedure” as that term is defined in the First Amendment Rights and Police Standards Act of 2004.

Section 6 Adopts the fiscal impact statement.

Section 7 Provides the effective date.

I X . C O M M I T T E E A C T I O N

On DATE, 2014, the Committee met to consider Bill 20-323. The meeting was called to order at __:__ _M, and Bill 20-323 was the only voting on the agenda. After ascertaining a quorum (Chairperson Wells and Councilmembers __, __, and __), Chairperson Wells moved the report, with leave for staff to make technical, editorial, and conforming changes. After an opportunity for discussion, the vote to approve the report was ______( ). Chairperson Wells then moved the print, with leave for staff and the General Counsel to make technical changes and conforming changes.

Councilmember ______began the discussion . . .

After an opportunity for discussion, the vote to approve the print was ______(__).The meeting adjourned at __:__ _M.

X . A T T A C H M E N T S

1. Bill 20-323 as introduced. 2. Witness list. 3. Fiscal impact statement. 4. Legal sufficiency determination by the General Counsel. 5. Comparative Print. Committee on the Judiciary and Public Safety June 19, 2014 DRAFT Report on Bill 20-323 Page 9 of 9 6. Committee Print for Bill 20-323.