SAN FRANCISCO (CBS SF) — SF City Attorney Dennis Herrera on Tuesday declared that the state’s current bail system is unconstitutional and he won’t defend it in a federal class-action lawsuit.
Herrera said he believes this is the first time a government entity has refused to defend a state bail system in court.
Herrera said he would not argue that dangerous people need to remain in jail, but stated how much money a person has isn’t a measure of whether they pose a threat.
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Under state law, every county is currently required to post a schedule that automatically sets the amount of bail defendants need to pay for pre-arraignment release.
Herrera believes the current system is two-tiered and allows people who aren’t threats to society to be locked up for days only because they can’t afford their bail.
On the flip side of that, someone who is a threat may be released because they can make bail. He explained that is unconstitutional.
“A bail schedule that lists the price of freedom without any consideration of the individual circumstances does not serve the interest of the government or public and unfairly discriminates against the poor,” said Herrera.
Phil Telfeyan, executive director of Equal Justice Under Law, the nonprofit that filed the lawsuit against the city last year, applauded the decision.
“To have the only defendant in the lawsuit agreeing with us about the harms of money bail is critical,” Telfeyan said.
The city’s move does not automatically end the case.
A ruling last month by U.S. District Court Judge Yvonne Gonzalez Rogers dismissed the state’s attorney general and city of San Francisco as defendants and denied the California Bail Bonds Association’s request to join the list of defendants, leaving Sheriff Vicki Hennessy as the sole defendant.
However, the state attorney general’s office or a state bail bonds group could still ask to intervene in the case and defend the current system now that the city attorney is not doing so.
The lawsuit has support from both the sheriff and public defender offices.
San Francisco Public Defender Jeff Adachi confirmed his support of Herrera’s decision Tuesday.
In a statement, Adachi said, “The practice of jailing the poor and people of color simply because they cannot afford bail is indefensible and violates the presumption of innocence and our country’s commitment to equal justice for all.”
District Attorney George Gascon also praised the decision, saying that it would help encourage a change in state legislation and push other counties to look at the issue.
For his part, Gascon has worked with the Laura and John Arnold Foundation to implement an algorithm, which has been in use in San Francisco courts for the past six months, that makes recommendations for or against release based on individual risk factors. San Francisco is one of only two counties in the state testing the system, which he described as a “work in progress.”
“My hope is that in the not too distant future money bail will be a thing of the past, and people will be held or released based on the risk they pose to the community and not on whether they can afford bail or not,” Gascon said.
Responding to Herrera’s decision, Assemblyman Rob Bonta, D-Oakland, Tuesday said he planned to file legislation to reform the state bail system.
Mayor Ed Lee said he was working with local criminal justice officials to find solutions that address “these inequalities without compromising public safety.”
“It’s important to remember that our justice system is grounded in the premise of innocent until proven guilty, and that should apply to everyone, not just those with enough money to post bail,” Lee said.
Settlements that did away with bail systems like California’s have already happened in cities in Alabama, Mississippi, Missouri, and Louisiana.
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