Judge Plans to Toss Money Bail System in San Francisco

(CN) – In an Oakland courtroom Thursday, a federal judge announced her plan to toss out the age-old practice of money bail for the City and County of San Francisco, saying it unfairly keeps impoverished arrestees behind bars.

“My duty is to issue an injunction. I’m willing to do it. Because I believe in the concept of federalism, I would prefer not to be as heavy-handed as I believe I am entitled to be,” U.S. District Judge Yvonne Gonzalez Rogers said.

Earlier this month, Gonzalez ruled in favor of two women representing a class of pre-arraignment arrestees who remain in custody because they cannot afford bail. Since the lawsuit was filed, the state has passed Senate Bill 10, a California law that effectively outlaws money bail statewide in favor of pre-trial risk assessments. A referendum seeking to overturn that law will be put to voters in November 2020, but Gonzalez nonetheless ruled that SB 10 was a plausible alternative to the bail schedule.

“The plaintiffs were not forced – and the law does not require – that they come up with a plan that is line-by-line adjudicated. They just have to come up with an alternative, which they did,” she said Thursday.

Her ruling blocked San Francisco Sheriff Vicki Hennessy from enforcing the bail schedule established by the San Francisco Superior Court, but asked for briefing on the language of a permanent injunction.

Since then, both the plaintiffs’ attorneys and the sheriff’s office have disputed what that language should be.

The plaintiffs filed a proposed injunction that would order the following: “Defendant the San Francisco Sheriff is hereby ordered to submit to the court, within 30 days, a written plan for how the Sheriff will administer release of pre-arraignment detainees so as to ensure compliance with the court’s order such that operational efficiencies do not trump the significant and fundamental deprivations of liberty at stake.”

The sheriff’s response, authored by Deputy City Attorney Jeremy Goldman, argued San Francisco already has a program in place allowing the court to consider whether an arrestee is fit for release based on a pre-trial assessment report.

“Perhaps plaintiffs really are at a loss to understand why, despite supporting the elimination of the bail schedule and operating one of the oldest [own recognizance] Projects in the nation, the Sheriff does not believe it appropriate to place the unchallenged non-monetary release procedures administered by her or the Superior Court under federal judicial supervision, or to require her to obtain this Court’s approval for them. But the Court’s summary judgment order explained the principles of federalism at stake and the proper limits on the exercise of federal judicial power,” Goldman wrote.

Own recognizance laws allow prisoners to be released from jail without bail.

So far, the sheriffs’ plan is to cease enforcing the bail schedule, as Gonzalez ordered. The sheriff objects to being forced to implement some other plan beyond that.

“One important thing about SB 10 is of course it changes many aspects of state law,” Goldman said at Thursday’s hearing. “And this case is a challenge to state law – and one thing I have unsuccessfully sought to have plaintiffs do in this case is actually specify which aspects of California law they are asking the court to declare unconstitutional. If the question is can the sheriff implement SB 10 now, the answer depends on what current provisions of California law stand in the way of doing that. The sheriff or even the superior court would not have the authority to implement a system that is not in compliance with current California law.”

He added, “Even under SB 10, the number of people eligible for release without a court order is very small compared to the population who is entitled to release under the bail schedule.  Under SB 10 they have to score low enough on the risk level and depending on the offense, they’re going to have to wait until arraignment.”

The plaintiffs’ attorney, Sadik Huseny, accused the sheriff’s office of making excuses. “You could have a system where if individuals have the money and pay the bail and leave, there can be individuals who do not have the payment and that payment is waived.”

“I’m not saying whatever he thinks I’m saying,” Goldman objected.

“What I hear you saying is the only relief the court can provide is no one has access to the bail schedule anymore and the sheriff is going to detain everyone until a judge reviews everyone’s cases and makes a decision,” Gonzalez said. “They’re just going to keep everyone locked up and when the judges tell them to let them out, they’ll let them out.”

Gonzalez also asked Goldman why she couldn’t adopt an injunction similar to that imposed by the Fifth Circuit Court of Appeals in O’Donnell v. Harris County, Texas, a federal case that challenged the county’s system of setting bail for poor misdemeanor arrestees.

In that case, the injunction prohibits Harris County from holding indigent detainees “for the 48 hours preceding their bail hearing if the same individual would have been released had he been able to post bond,” and requires the county to “release, on unsecured personal bond, all misdemeanor arrestees who have not had a hearing and individual assessment within 48 hours,” while still allowing the court to require their return for a hearing.

“The Fifth Circuit case is very different,” Goldman argued. “It was not a challenge to state law but to the courts, and the judges were defendants. It was a pattern-and-practice case. It’s a different constitutional violation and therefore a different constitutional remedy.”

Goldman said no further progress can be made without the San Francisco Superior Court’s involvement.

“I suggested that to you months ago,” Gonzalez said.

She ultimately decided to give the sheriff’s office and plaintiffs’ attorneys one week to contact the court. By April 19th, she said, both parties must file a statement advising her of the status of their discussions.

“To the extent that there is an ability to try to resolve these issues in a way that works for the sheriff, that would be my preference,” she said. “Ultimately the proof is in the pudding. If you’re not going to come up with something, I have to issue an injunction.”

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