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As bail changes in Calif., a new two-track plan is being proposed

According to a recent state study, 48,000 county jail inmates, two-thirds of the statewide jail population, have not been convicted of a crime

By Bob Egelko
San Francisco Chronicle

SAN FRANCISCO — Bail in California’s courts is at a crossroads, with pivotal decisions awaiting the voters and state courts. But in San Francisco, where a federal judge has already declared the local bail rules unconstitutional, criminal-defense advocates are proposing a new system of pretrial release for defendants who pose no serious risk but can’t afford bail.

Under the plan, the current schedule, which sets different amounts of bail for each crime, would remain in place for those who could afford it. Others would be released within 12 hours of arrest, with monitoring but no bail, unless law enforcement officers presented evidence that they were dangerous.

The proposed two-track system would allow judges to detain “the most high-risk individuals” while making sure that low-income defendants “can be released on equal footing with those who are released on cash bail,” lawyers for former inmates challenging the city’s bail procedures said in a court filing.

But City Attorney Dennis Herrera’s office, representing Sheriff Vicki Hennessy, said the judge should discontinue the current system, which sets bail in different amounts based on the crimes charged, and should instead require local courts to consider the facts of each case before deciding whether a newly arrested defendant must stay in jail.

U.S. District Judge Yvonne Gonzalez Rogers of Oakland will decide which plan to adopt after a hearing scheduled for Aug. 23.

Gonzalez Rogers ruled in March that San Francisco’s cash-bail system violated the rights of poor defendants without promoting public safety. The bail schedule “merely provides a ‘Get Out of Jail’ card for anyone with sufficient means to afford it,” she said.

Her ruling applies only to San Francisco, but plaintiffs’ lawyers say it could be followed in other counties. While the case proceeds, the future of pretrial bail in California faces crucial decisions from the state’s voters and its highest court.

Then-Gov. Jerry Brown signed legislation last year that would have made California the first state to prohibit its courts from requiring defendants to post bail to be released before trial. The new law, which had been scheduled to take effect this October, would largely leave release decisions to local judges, based on individual risk assessments, though defendants charged with violent crimes would still be held without bail.

But the law was put on hold when opponents qualified a referendum for the November 2020 ballot to determine whether it takes effect. The referendum is sponsored by bail bond companies, which collect a 10% fee when they post bail. They contend the current system protects the public and motivates defendants to appear in court after release.

Meanwhile, the California Supreme Court has agreed to decide whether judges, under the current system, must consider a defendant’s financial status before setting bail. That case, and the law the voters will consider next year, involve bail from the time of arrest through trial. The federal court case addresses only the initial period between arrest and the arraignment hearing, several days later, where a defendant pleads guilty or not guilty.

The state law, if it survives the referendum, “could preempt the entire system,” said attorney Phil Telfeyan of the nonprofit Equal Justice Under Law, which represents plaintiffs in the federal case.

In the meantime, he said, the two court cases will determine bail procedures locally and statewide. If voters reject the new state law, the plan that Gonzalez Rogers approves will remain in effect in San Francisco, Telfeyan said, and constitutional protections in the plan could remain in place locally regardless of the state vote.

According to a recent state study, 48,000 county jail inmates, two-thirds of the statewide jail population, have not been convicted of a crime, and most are being held because they cannot afford bail.

The lead plaintiff in the federal case was arrested on suspicion of grand theft and conspiracy in 2015 and held on $30,000 bail under San Francisco’s bail schedule. Unable to afford it, she was held for two days before prosecutors decided not to charge her and lost her job as a result, her lawyers said.

In court filings, the plaintiffs’ lawyers quoted Gonzalez Rogers as saying at a hearing that she did not “intend to harm” anyone who could pay bail under the current system. In response, the lawyers said, they are proposing to leave the bail schedule intact for those who can pay, and to release others, with monitoring but no bail, within 12 hours of arrest, the average time now needed to free defendants on bail.

The proposal would also allow law enforcement officers eight hours after arrest to present evidence of safety concerns. In those cases, the defendant would be held until a day after arrest, when the judge would decide whether to tighten post-release restrictions or deny release. The lawyers said San Francisco Superior Court judges have sought state funding for a pretrial release program designed to determine a defendant’s suitability for release within 12 hours.

But the city’s lawyers said new bail procedures would be “substantially more disruptive” than simply suspending the current bail schedule. If judges are required to make decisions on pretrial release within 24 hours, they told Gonzalez Rogers, “the most likely outcome will be for the duty judge to deny (nonmonetary) release, allowing the issue to be considered again on a proper record at arraignment.”

©2019 the San Francisco Chronicle