California Attorney General Kamala Harris today said in a court filing that she will not defend the constitutionality of the state bail system in a federal lawsuit against San Francisco’s sheriff.
The notice filed today, indicating that the attorney general’s office does not plan to intervene in the case challenging the money-based pre-arraignment bail system, is a reversal of the position taken by Harris’ office as recently as this summer.
It also leaves a state bail agents group as the only likely defender of the constitutionality of state bail laws, which generally require counties to set bail amounts automatically for defendants awaiting arraignment based on their offenses rather than on their ability to pay or risk to the community.
San Francisco City Attorney Dennis Herrera last month announced that while Sheriff Vicki Hennessy, the named defendant in the lawsuit, is required to carry out state bail laws, the city will not defend the laws’ constitutionality.
Harris’ office has not yet responded to a request for comment today, but released a statement last week that argued that the bail system is unconstitutional if it is imposed in a way that does not consider a defendant’s ability to pay or alternative means of ensuring their appearance at trial.
That stance is similar to one taken by the attorney general’s office in a similar lawsuit challenging the bail system filed against Sacramento County, according to Phil Telfeyan, executive director of Equal Justice Under Law.
The nonprofit group, which filed both lawsuits, is opposed to any money-based pre-arraignment bail system, regardless of the details, Telfeyan said. While he welcomed the attorney general’s decision today, he said it did not significantly change the case for the plaintiffs.
“Regardless of the what the attorney general says or doesn’t say in the case, our position has been constant, that money bail discriminates against people who are poor in the pretrial justice system,” Telfeyan said.
He noted that Harris, who was elected to the U.S. Senate in November, is due to leave office next month and the new attorney general could choose to intervene in the case. Gov. Jerry Brown earlier this month said he will appoint U.S. Rep. Xavier Becerra, D-Los Angeles, as attorney general once Harris takes office.
John Cote, a spokesman for the city attorney’s office, said the city welcomed the attorney general’s filing and her recent statements about the bail system.
“We absolutely agree that denying equal access to justice based solely on income is unconstitutional and freedom should not be decided by the size of your bank account,” Cote said.
The California Bail Agents Association asked last month to be allowed to intervene in the lawsuit. The group, which has until next Tuesday to file a motion to intervene, said in a filing last month that it plans plans to mount a “substantive and multi-pronged defense of the use of surety bail.”
While the San Francisco and Sacramento lawsuits work their way through the courts, bail reform advocates are working through other avenues as well.
Legislation announced earlier this month by Assemblyman Rob Bonta, D-Oakland, and other lawmakers aims to reform the state’s money bail system, but details of the proposed reform have not yet been worked out.
The next status conference in the San Francisco bail lawsuit is scheduled for Feb. 13.