A settlement was reached Friday in a federal class action lawsuit seeking to eliminate San Francisco’s money-based bail system.
The lawsuit asked the court to declare the system unconstitutional and order The City to use an alternative method of assessing the risk of releasing arrestees.
The proposed settlement “takes money out of the equation” by allowing for a more speedy assessment by the San Francisco Superior Court of people charged with misdemeanors and non-violent felonies who are eligible for pre-arraignment release, City Attorney Dennis Herrera said in a statement on Friday.
“One system of justice for the rich and another for everyone else isn’t justice at all,” Herrera said. “Our proposal safeguards civil liberties by ensuring low-level cases are assessed quickly, and it protects public safety by guaranteeing no one accused of a serious or violent crime is released without judicial review.”
The settlement still requires approval by the Board of Supervisors. It stipulates that a public safety assessment must be submitted by the Recognizance Project to the San Francisco Superior Court for review within eight hours of a person’s identity being confirmed in jail. The purpose of the Recognizance Project is to interview eligible in-custody defendants and present their cases to a judicial officer for possible pre-arraignment release on their own recognizance, according to the Sheriff’s Department.
The settlement requires the court to review the public safety assessment and to make a decision on release within 18 hours of a person’s identity being confirmed. If no decision is made in that time frame, the determination of the public safety assessment would take effect, requiring the sheriff to release or detain the defendant as indicted, according to Herrera.
During the 18-hour window, a 12-hour extension can be filed by a law enforcement officer to give the Superior Court additional time to make a decision. The provisions of the proposed settlement would not apply to defendants charged with serious or violent felonies or other offenses listed in California Penal Code section 1270.1(a), according to Herrera.
Defendants eligible under the terms of the settlement can obtain release by posting bail via the bail schedule under current law, but are not eligible for pre-arraignment Own Recognizance release, said Herrera.
The lawsuit was filed in 2015 by the nonprofit group Equal Justice Under Law and named San Francisco Sheriff Vicki Hennessy as the defendant. It stemmed from the 2015 arrests of two women for suspicion of grand theft and suspicion of assault who spent 46 and 31 hours in jail, respectively, because they couldn’t afford bail.
Both women were later released without charges by the San Francisco District Attorney. They alleged the system was unfair because only the wealthy could afford to pay their way out of jail.
In 2016, Hennessy and Herrera — the sheriff’s legal counsel — declined to defend the current system, which was set up under a state law that requires the sheriff to release pre-arraignment defendants who post bail according to a bail schedule set by the San Francisco Superior Court with amounts based on the crimes.
Hennessey said then that she considered the system unconstitutional, prompting opposition in the case to be taken over by the California Bail Agents Association.
“I’ve worked in and around the county jails for more than four decades,” Hennessy said in a statement. “People with means pay their bail and leave jail pre-arraignment while others who don’t have the money may remain incarcerated. While we have a robust pretrial risk assessment and release program, the Superior Court bail schedule created an unequal playing field for some pretrial releases. With this settlement, the Sheriff will no longer release people according to the court’s bail schedule.”
After years of litigation, a federal judge ruled in March that San Francisco’s practice of requiring newly arrested defendants to pay cash bail based on the crimes charged to be released from jail is a violation of the rights of poor defendants and does little to protect the public.