Judge Likely to Shut Down San Francisco’s Bail Schedule

OAKLAND, Calif. (CN) – A federal judge will likely rule San Francisco’s bail schedule unconstitutional, saying at a hearing Tuesday she could find no justification for the amount of money it demands arrestees pay to avoid sitting in jail.

The absence of a link between the fees outlined in the schedule and the state’s compelling interest means the schedule likely won’t pass constitutional muster.

“There appears to be no indication in the schedule that identifies any relationship between the money being demanded under the schedule and a compelling government interest. I’ve seen nothing that makes that link,” U.S. District Judge Yvonne Gonzalez Rogers said.

She called it “certainly discriminatory,” adding, “Why should any person have an advantage that one person does not have?”

What began as a federal constitutional challenge to money bail in San Francisco will end with an anticlimactic ruling on cross motions for summary judgment.  At Tuesday’s hearing, lawyers for the California Bail Agents Association and a class of poor arrestees made their cases for why Gonzalez Rogers should rule in their favor.

Representing the California Bail Agents Association, which seeks to fill the role of the government in defending the bail schedule after both the City and County of San Francisco and the State of California bowed out, attorney Harmeet Dhillon said the class hasn’t met its burden of showing a plausible, less restrictive alternative to bail.

In 2018, former Gov. Jerry Brown signed into law Senate Bill 10, which replaces California’s current money bail system with pretrial risk assessments and lets local courts decide who should be released while awaiting trial or sentencing. Also known as The California Bail Reform Act, the law doesn’t take effect until Oct. 1, 2019, and a referendum is already under way to repeal it.

Dhillon said that by removing the option of posting bail, the new framework will end up increasing the jail population by 4.9 percent.

“The alternatives proposed to the bail schedule are not less restrictive,” she said. “SB 10 allows more people to be held without an opportunity for release.”

Dhillon added, “There are a number of factors other than indigence which decides whether a defendant bails out. The indigence factor—there’s a plausibility problem with it. A person who is unable to afford a million dollar bail without the benefit of a bail agent or friends and family isn’t necessarily an indigent person.”

She noted that even civil rights advocates who were initially on board with SB 10 flipped when they realized that pre-trial risk assessment tools sometimes end up disproportionately incarcerating the poor.

But Gonzalez Rogers was more interested in the actual bail schedule used in the City and County of San Francisco, and whether it is discriminatory.  “We aren’t talking about bail, we are talking about the bail schedule and you need to stop confusing the two issues,” the judge said. “There is absolutely nothing that justifies the governmental interest as a link to the schedule.”

“Well my clients in the bail industry didn’t set the schedule,” Dhillon said.

“But that’s what we’re here for. And I’ve seen nothing. And you’ve identified nothing,” said the judge. “I just don’t understand— when a court is doing a constitutional analysis—how it can indicate that a schedule that lists penal code sections and monetary amounts that bears no relationship to a compelling government interest, how that can be sanctioned. I don’t understand how that can happen.”

She told Dhillon, “No one is suggesting we should have no bail. The question is whether the schedule meets constitutional scrutiny. So try again.”

Slightly flummoxed, but undaunted, Dhillon replied, “I have to rely on our arguments that that the alternatives the plaintiffs are arguing aren’t less restrictive.”

Gonzalez Rogers said she will try to rule “as soon as is reasonably possible,” but said, “I guarantee I’m not the final word on this topic. Whoever loses will go to the next court and tell them why I’m wrong.”

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