City Attorney Won't Defend San Francisco's 'Money Bail' System

In an unprecedented move that may have implications beyond the Bay Area, San Francisco City Attorney Dennis Herrera announced he will not defend the use of the county’s monetary bail system in a federal class-action lawsuit that claims it is unconstitutional.

In a Tuesday court filing, Herrera argued that the current bail system, mandated by state law and set by individual counties, unfairly affects poor people.

In a press conference, Herrera said monetary bail "creates a two-tiered system, one for those with money and another for those without. It doesn't make anybody safer, it's not right, and it’s not in keeping with the constitution."

In February, the Public Policy Institute of California cited data from State Court Processing Statistics (SCPS) showing California’s median bail amount in 2015 was $50,000.

The Washington, D.C.-based organization Equal Justice Under Law filed the lawsuit last year against San Francisco and California on behalf of two low-income women who were arrested and held on large bails, but never charged.

Phil Telfeyan, executive director of Equal Justice Under Law, said that one of the plaintiffs, Riana Buffin, had never been arrested before she was accused of stealing merchandise from a department store and given a bail of $30,000.

The lawsuit, which is seeking an injunction to the county’s bail system, eventually dropped San Francisco and California as defendants and is currently against only San Francisco Sheriff Vicki Hennessy, who sets the bail schedule in her official capacity.

In his court filing, Herrera writes, “The Sheriff is required to enforce the State’s law, and she will, unless and until its unconstitutionality is established in the courts. But she is not required to defend it, and she will not.”

Telfeyan says his organization has filed 11 lawsuits around the country in a national effort to reform the “money bail system,” but the San Francisco case is pivotal.

“What happens in California will be looked at across the country by courts and state legislators, so the San Francisco case is monumental,” Telfeyan said.

The organization also has bail-related litigation pending in Sacramento. California Attorney General Kamala Harris is a defendant in that case.

Herrera said that the California Attorney General’s Office may step in to defend the San Francisco bail system. A spokeswoman said that for now the office is only reviewing the matter.

The litigation threatens a national multibillion-dollar bail bond industry, and the California Bail Agents Association (CBAA) is seeking to have the case dismissed. Harmeet Dhillon, an attorney representing the CBAA, said she plans to file a motion to intervene in the case, and one to have it thrown out.

Harmeet said San Francisco's bail system is consistent with both state and federal constitutions, and claims that suggest otherwise have "no merit."

In a written statement, San Francisco Public Defender Jeff Adachi offered support for Herrera’s stance. Adachi wrote, “The practice of jailing the poor and people of color simply because they cannot afford bail is indefensible and violates the presumption of innocence and our country’s commitment to equal justice for all.”