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Attorney General Becerra stands by appellate court ruling on SF bail reform case

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Bail bonds businesses line up across the street from the Hall of Justice on Bryant Street in San Francisco, Calif. (Photo by Joel Angel Juárez/Special to S.F. Examiner)

California Attorney General Xavier Becerra announced Tuesday that his office will not challenge a recent court ruling that is already changing the way bail is set for defendants in San Francisco.

The First District Court of Appeal in San Francisco ruled Jan. 25 that judges must set bail based on a defendant’s ability to pay, rather than on fixed bail schedule amounts that are often too much for a defendant to afford.

“It’s long past time to reduce our dependence on cash bail and stop incarcerating non-violent offenders for no reason other than being poor,” Becerra said at a news conference in Sacramento. “Bail decisions should be based on danger to the public, not dollars in your pocket.”

SEE RELATED: ‘Broken’ bail system costs mostly poor SF residents $15M annually in fees

The ruling stemmed from a legal battle between Becerra and San Francisco Public Defender Jeff Adachi over $350,000 bail set for 64-year-old Kenneth Humphrey. Humphrey, who is indigent, allegedly followed his elderly neighbor into their home, threatened the victim and stole a bottle of cologne.

The appeals court ruled in favor of Adachi and the nonprofit Civil Rights Corps, finding that “a defendant may not be imprisoned solely due to poverty.” The decision came amid calls for bail reform across the nation, with critics arguing that money bail traps defendants in cycles of poverty.

Adachi said the Humphrey decision is now “the law of the land,” but he has seen just one judge in San Francisco set bail based on the ruling since last month.

“The attorney general has now said that the courts have to follow this law,” Adachi said at a bail reform rally Tuesday. “If they continue to set bail according to this arbitrary bail schedule, the judges are in violation of the law.”

Public Defender Jeff Adachi speaks at a rally calling for an end to the money bail system in California on Tuesday outside the Hall of Justice in San Francisco. (Michael Barba/S.F. Examiner)

District Attorney George Gascon said his office has begun to shift away from asking for a defendant to be held on bail. Gascon said he expects to see more defendants released from County Jail under supervised release as a result.

“Traditionally, money bail was used as the tool to either determine somebody’s release or not,” Gascon said. That tool — the courts are telling us — is no longer the tool that you can use regularly to hold people back.”

Gascon said his attorneys will instead ask for defendants to be held without bail in serious violent cases or more often request that defendants be released under various conditions of supervision including GPS monitoring.

Gascon said requesting money bail under the Humphrey decision would mean in most cases that the judge sets bail at an affordable amount, resulting in a defendant’s release. Prosecutors cannot place conditions on a defendant released on bail under the U.S. Constitution.

“Money bail doesn’t necessarily mean that you have a good tool to hold somebody based on risk,” Gascon said. “Money bail means that if you cannot afford bail, you get to stay. And if you can afford bail, even if you are risky, you can leave.”

Maggie Kreins, vice president of the California Bail Agents Association Board of Directors, said she opposed the Humphrey ruling and was disappointed in Becerra for not appealing the decision.

“It’s unjust to the people of California and puts the people of California at great risk,” said Kreins, a bail agent of 31 years based in Long Beach.

“You can’t just willy-nilly open the doors,” Kreins added. “How does this protect victims? How do they get their day in court?”

Gascon said San Francisco will need to beef up resources for pretrial services to efficiently end money bail and implement the Humphrey decision.

“Clearly, there’s going to have to be more money invested in pretrial release,” Gascon said. “But quite frankly, if you do the economic equation, it’s still going to be significantly less than just simply holding people in custody.”

Though changes to the bail system are underway in San Francisco, Becerra said legislative reforms are needed to change the way bail is set across California.

Senate Bill 10, the California Money Bail Reform Act of 2017, is currently working its way through the legislature. The bill would roll out new bail and pretrial release processes to the courts.

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