OAKLAND, Calif. (CN) – It’s been five months since U.S. District Judge Yvonne Gonzalez Rogers declared San Francisco’s bail schedule unconstitutional. But with talks on a replacement plan between the sheriff and attorneys representing pretrial detainees grinding to a halt, she’s fed up and willing to let political pressure force the local court and law enforcement to act.
“I am left with the sense that unless I bang the hammer and say the deadline is ‘X,’ there seems to be very little indication of motivation of bringing the parties together,” Gonzalez said at a hearing Friday. “It’s unfortunate that you are unable to resolve this.”
Gonzalez delayed barring San Francisco from using the bail schedule in March, giving the parties time to come up with the least restrictive way of keeping the public safe and ensuring defendants return to court.
But discussions reached an impasse and Gonzalez said that may force her to craft a solution neither side will like. It could mean more people staying locked up longer as they wait to go before a judge.
Sadik Huseny with Latham and Watkins represents the class of pre-arraignment arrestees in custody because they cannot afford bail. He told Gonzalez Friday that the state trial court has refused to negotiate, unexpectedly cancelling a scheduled meeting four days ago.
The court mentioned did not respond to a phone call request for comment.
Huseny urged Gonzalez to adopt a proposal submitted by the plaintiffs’ counsel keeping the bail system in place for those who can afford it while putting in place an own-recognizance release process that will assess detainees within 12 hours of arrest.
Those not released within 12 hours will have the option to get out of jail on an unsecured bond. According to a motion Huseny filed earlier this month, “This mirrors the process by which arrestees are released on bail, but does not require individuals have the resources to pay the amounts listed on the bail schedule.”
Police officers will also be able to petition to delay an arrestee’s release for up to 24 hours, extending the length of time allowed by the current criminal code by 16 hours.
Representing the sheriff’s department, Deputy City Attorney Jeremy Goldman said he did not know why the state court was being so intractable but urged Gonzalez not to accept Huseny’s proposal.
He said the sheriff’s department should not have to come up with a plan for bail replacement since it does not make policy, only enforces the policies made by others.
The sheriff’s department has argued the judge should eliminate the bail schedule, period. Goldman said he thought settlement talks should resume.
“You’ve had five months. What assurance can you give me that waiting any longer would make any difference whatsoever?” Gonzalez said.
Huseny said if the sheriff’s department refuses, Gonzalez can order it to come up with a plan.
“You have broad power to effectuate a scheme that solves the constitutional violation,” he said.
Since the lawsuit was filed, the Legislature passed Senate Bill 10 which effectively outlaws money bail statewide in favor of pretrial risk assessments. A referendum seeking to overturn that law will be put to voters in November 2020, but Gonzalez ruled in March that SB 10 was a plausible alternative to San Francisco’s bail schedule.
Depending on the outcome of the referendum, the law requires counties to begin conducting pretrial risk assessments of all arrestees and recommend them either for detention, release on their own recognizance, or release with conditions.
Though San Francisco already has a successful nonprofit pretrial diversion program, San Francisco Superior Court was one of 31 courts that had asked the Judicial Council to fund a new program that will eliminate SF Pretrial and bring its services under the purview of the probation department.
The Judicial Council unveiled the 16 courts selected for pretrial pilot project funding at its meeting in August. San Francisco did not make the cut.
Against this background, Gonzalez must choose whether to adopt the plaintiffs’ proposal or eliminate the bail schedule, which means more people will sit in jail for up to 72 hours before they can see a judge. She can also decide to institute something altogether different.
“One alternative is if the schedule is eliminated, there is a process in place. People just have to wait. And I suspect that there will be a lot of pressure for them to actually do something for which they’ve been on notice for five months,” she said, noting the courts deal with the political fallout of refusals to engage in productive settlement talks.
“If I adopt the position suggested by the sheriff, then everyone waits on the court. Rich and poor. Everyone waits because they chose to do nothing for the last five months. “If they choose to do nothing, then I suspect there will be political consequences for doing nothing.”
Gonzalez proposed further negotiations before U.S. Magistrate Judge James Spero on Aug. 28, which both sides accepted.
Outside the courtroom, Huseny said he thought he was close to an agreement in principle with the sheriff before Friday’s hearing, but the department pulled out when the state court objected.
“We heard it has to do with operational and safety issues, but that’s all we know,” he said. He declined to comment on what the nearly finalized agreement looked like, or if it bears any similarity to the proposal he advanced in court.
Attorney Phil Telfeyan with the Washington-based Equal Justice Under Law, who also represents the plaintiffs, said Gonzalez seems committed to a just outcome and eliminating bail with no other plan in place will make things worse.
“The judge did say her goal is to help everyone across the board. What she sees from the sheriff is not helping everyone. It is going to increase the tension for virtually everyone prior to arraignment,” he said.
“All we know about this judge is she’s very concerned about the constitutional rights of San Franciscans, and that she will stay within the bounds of the law. Which way she’s leaning, we don’t know. I expect Judge Gonzalez Rogers to carefully consider both sides and do what’s right for this case and the law.”