Judge: S.F.'s Inaction on Bail Reform Could Cause More People to Be Held in Jail Longer

Update, 3:50 p.m. Friday: A federal judge warned Friday that she is considering issuing an order that would eliminate the use of cash bail in San Francisco, and with no alternative system in place, that could result in more arrestees waiting in jail for days before appearing in court.

That's exactly what the city's sheriff is arguing should happen.

"If I adopt the position proposed by the sheriff, then everybody waits on the court, rich and poor," Judge Yvonne Gonzalez Rogers said in her Oakland courtroom Friday. "Everybody waits because they chose to do nothing for five months."

Gonzalez Rogers found in March, as other courts have, that reliance on cash bail creates an unconstitutional inequality between affluent and poor arrestees. Those who can afford to pay hundreds or thousands of dollars to guarantee they'll show up in court are released within 12 hours on average in San Francisco, according to court filings, but those who can't afford to pay may end up waiting in jail for several days before a judge decides whether they can be released pending trial.

The lawsuit initiating the case was brought in late 2015 by two women arrested separately in San Francisco.

Riana Buffin spent almost two full days in jail on a charge of grand theft because she couldn't afford bail and lost her $10.25 an hour job at Oakland's airport as a result. Crystal Patterson was jailed for more than 24 hours on charges of assault, then promised to pay $15,000 plus interest to a bail agent so she could be released. Prosecutors dropped charges against both women.

Their attorneys are asking Gonzalez Rogers to keep the option to pay bail in place and order San Francisco to create alternatives for arrestees who can't afford to pay that would still result in release within 12 hours.

"We’re saying it can be speedy. The Superior Court said it can be speedy. Make it speedy," plaintiffs' attorney Sadik Huseny argued Friday.

Gonzalez Rogers said San Francisco Superior Court had "stuck its head in the sand" on the issue. Huseny said the local court "torpedoed" a plan to replace cash bail that the sheriff had tentatively agreed to. He declined to elaborate after the hearing on that now-abandoned proposal, which was part of confidential settlement negotiations.

While San Francisco opposes the plaintiffs' plan to keep the option for bail and ensure that pretrial release decisions are made within 12 hours of booking, an attorney representing the city and sheriff said there is still the potential for a compromise. The parties were ordered to another settlement conference on Wednesday.

Original post, 6:30 a.m. Friday: Five months after a federal judge ruled that San Francisco's bail system deprives low-income defendants of their constitutional right to freedom before appearing in court, the same judge is expected to rule Friday on how the city should replace prearraignment cash bail.

The federal case is one of several legal and political challenges to California's cash bail system, which often requires defendants to pay bail agents hundreds or thousands of dollars to secure their release before an early court appearance at which they are formally charged, called an arraignment, or pending trial. The debate pits public safety concerns over defendants who could flee or commit more crimes against the presumption of innocence until proven guilty.

State legislation to eliminate bail entirely — and replace it with a system that gives judges far more discretion — was signed last year by then-Gov. Jerry Brown but hasn't yet taken effect. That's because the bail industry collected enough signatures to place a referendum on the November 2020 ballot, asking voters to overturn the law.

The case in court Friday was brought by two women who were arrested in San Francisco but couldn't afford to post bail before their arraignment and had to stay in jail for more than 24 hours. The suit challenged the city's pre-arraignment bail system, arguing that it discriminated against poor people because they ended up staying in jail longer than people who could immediately pay to be released.

In a March ruling, Oakland-based federal Judge Yvonne Gonzalez Rogers agreed, writing that plaintiff Riana Buffin spent 46 hours in jail and lost her job because she couldn't afford bail; and plaintiff Crystal Patterson spent 29 hours in jail and had to promise to pay $15,000 to a bail agent to secure her release.

Rogers wrote that people arrested in San Francisco who are able to post bail get out of jail more quickly than people who cannot, that the sheriff's use of bail "significantly deprives plaintiffs of their fundamental right to liberty," and that alternatives exist that will still protect public safety and ensure that offenders show up in court.

But she didn't rule then on what the city should do to replace cash bail. Instead, she asked the parties to brief her on what they believe San Francisco should do.

There's not a lot of agreement.

Plaintiffs, led by Washington, D.C.-based nonprofit Equal Justice Under Law, are asking the court to create a sort of menu of options, which will allow people who can afford bail to still post it — something that usually occurs within 12 hours. Those who cannot afford bail would also be required to be released within 12 hours — either on their own recognizance (in which a person simply signs a paper promising to appear in court later), or agreeing to an unsecured bond (in which a defendant promises to pay the full bail amount if they do not appear in court later).

The plaintiffs' proposal calls for arrestees to be held longer than 12 hours only if police file a declaration with the court arguing that releasing the person would pose a public safety risk. That declaration would be due within eight hours, and judges would have to rule within 24 hours.

"This mechanism will serve to equalize treatment between those who can and cannot afford bail, while providing important public safety safeguards in particular circumstances," the plaintiffs wrote in their brief to the court.

Their proposal also calls on the court to monitor the process to ensure that police aren't simply objecting to releasing every single person.

The San Francisco Sheriff's Department — which previously refused to defend the city's cash bail system — is calling for a much more sweeping change, one that would sideline money bail entirely for the period before someone arrested is arraigned.

In a brief written on behalf of San Francisco Sheriff Vicki Hennessey, lawyers for the city argue that the entire pre-arraignment bail system should be thrown out, in favor of one system that assesses flight and public safety risk for all arrestees, regardless of their ability to pay.

The city also argued that a federal judge shouldn't decide what that system is — the relevant public entities should, such as the sheriff and the local court.

San Francisco argues that any alternative would run afoul of state law and likely maintain inequalities among defendants based on how much money they have.

Meanwhile, the California Bail Agents Association — which intervened in the case when the sheriff refused to defend the bail system — is arguing for a more narrow judgment. In a brief, the association wrote that the judge's final decision should apply only to the class represented by the plaintiffs: Those who cannot pay.

And, lawyers for the bail association argued, the judge's order cannot create a system that requires funding from parties that aren't a party to the lawsuit — the sheriff and the courts.

Those, of course, are the very same parties that the Sheriff's Department believes should be in charge of coming up with an alternative.

The hearing will take place at 10 a.m. Friday in Oakland.