San Francisco City Attorney Dennis Herrera announces his decision not to defend the state bail schedule, deeming it unconstitutional during a press conference at City Hall in San Francisco, Calif. Tuesday, November 1, 2016. (Jessica Christian/S.F. Examiner)

SF won’t defend ‘unconstitutional’ bail system in lawsuit

In a move that could have a ripple effect across the state’s criminal justice system, San Francisco’s City Attorney said Tuesday he will not defend an “unconstitutional” money bail system that unfairly victimizes the poor.

City Attorney Dennis Herrera said his office will not defend The City against a federal lawsuit filed last year by Equal Justice Under Law, a Washington, D.C.­-based civil rights nonprofit, claiming money bail is unconstitutional.

“Everybody should be treated equally,” said Herrera, who added there needs to be a fair justice system and the current bail system penalizes poor people who have been charged with a crime because they can often not afford bail.

Specifically, Herrera said the pretrial bail system, which sets bails without adjudication by a judge, is unfair because it creates a two-tier system based on who can pay. He added that a system “based simply on money” is unjust.

The lawsuit in question, a year-old federal class action lawsuit filed specifically against the Sheriff’s Department, argued that The City’s bail system penalizes the poor with unpayable amounts for small offenses, but allows wealthy defendants charged with serious crimes onto the streets because they can afford bail.

While originally focused on bail in general, the suit has since narrowed its focus to pretrial bail, which is usually set in advance depending on the charges in the case.

The judges who work in San Francisco Superior Court collectively have the power to choose whatever bail schedule they want, but have instead kept it in line with the rest of the state’s courts.

“The right to bail is guaranteed by the California Constitution and the court follows state law in setting bail,” said Ann Donlan, a spokesperson for the San Francisco Superior Court.

Nonetheless, the County Jail is run by the Sheriff’s Department, which enforces the bail system.

The lawsuit originally alleged that the way bail is set up is unconstitutional because it violates the principle of equal protection under the law. Six similar lawsuits have forced local jurisdictions across the country to amend their bail schedules so the poor are not so negatively impacted.

“In San Francisco, arrestees face two different outcomes depending on their wealth status,” the lawsuit said. “Wealthy arrestees purchase their freedom by paying an arbitrary amount set by the bail schedule. Poor arrestees must languish behind bars until the resolution of their case, simply because they cannot afford to pay a pre-determined sum of money. The sole criterion determining whether a pretrial arrestee walks free or sits in jail is the amount of money she has.”

The suit named two women arrested in October 2015 who served time in San Francisco County Jail because they could not afford bail. Both plaintiffs, Riana Buffin, 19, and Crystal Patterson, 29, were released from jail.

Herrera said this action is only the beginning of what he hopes is wholesale reform of California’s bail system.

“There won’t be change tomorrow or today,” he said, noting that another state entity may step up to defend the constitutionality of the system. But he believes this is the first chink in the armor of a system that he hopes will change.

Phil Telfeyan, a spokesperson for the civil rights group suing The City, said they are waiting to see if other entities move to enter the legal battle and defend the bail system.

“The California Bail Agents Association has twice moved to enter into the suit,” he said, adding that the California Department of Justice had also defended the law, but was dismissed by the court from the suit, since The City’s sheriff enforces the state law. The CBAA had a deadline Tuesday to renew their request to enter into the suit, he added.

There is a Dec. 5 hearing on the future of the litigation. Telfeyan and his group are seeking an injunction in San Francisco to end money bail, which would force the Sheriff’s Department to create a new system.

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