City attorney declines to defend ‘unconst­itutional’ bail system

San Francisco City Attorney Dennis Herrera Tuesday called California’s money-based bail system “unconstitutional” and said he would not defend it in a federal lawsuit against The City’s sheriff.

Herrera’s announcement means that The City will not contest a lawsuit filed against San Francisco last year alleging that the pre-arraignment bail system violates the Constitution by keeping defendants in custody if they cannot afford bail, even when they do not pose a risk to the community.

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.

“That creates a two-tiered system, one for those with money and one for those without,” Herrera said. “It doesn’t make anyone safer, it’s not right and it needs to stop.” While jurisdictions in other states have taken steps to reform their bail systems, Herrera said this appears to be the first time a government agency has chosen not to defend a bail system in court.

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.”

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.

Telfeyan credited Public Defender Jeff Adachi with pushing forward the lawsuit.

Equal Justice Under Law has filed 11 similar lawsuits across the country, but it was Adachi who reached out and invited the group to file in San Francisco, providing critical data on the local system, Telfeyan said.

Adachi said in a statement Tuesday:

“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. … I applaud the City Attorney’s decision not to defend the lawsuit.”

District Attorney George Gascón 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, Gascón 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 Gascón 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.”

Responding to Herrera’s decision, Assemblyman Rob Bonta, D-Oakland, today said he planned to file legislation to reform the state bail system.

Mayor Ed Lee Tuesday 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.”