By Bob Egelko
San Francisco Chronicle
November 29, 2016
Attorney General Kamala Harris will intervene in case against a California law requiring criminal defendants to post bail to be freed while awaiting trial, a system that is being challenged in a lawsuit as unfair to the poor.
Harris’ office agreed to step in after San Francisco’s city attorney and sheriff refused to defend the law, questioning its constitutionality and even-handedness.
Kristin Ford, a spokeswoman for Harris, said Monday the attorney general would seek approval from a federal judge in Oakland to intervene in the San Francisco case. Harris’ proposed intervention had been announced earlier in the day in a court filing by City Attorney Dennis Herrera’s office.
Bail bond companies also want to enter the case and defend the cash-bail system, a request opposed by the group that is challenging the law.
The state law requires courts in each county to set bail in varying amounts depending on the seriousness of the crime. Those who post bail are set free while awaiting trial, but defendants who can’t pay the prescribed amount, or the 10 percent fee charged by bond companies, remain in jail until they are formally charged and arraigned, usually 48 hours after arrest. At that point, a judge sets conditions for pretrial release, often including bail, based on their assessments of the risk to public safety and the chance that the defendant might flee.
The nonprofit Equal Justice Under Law has challenged cash-bail systems in a number of states, including suits in San Francisco and Sacramento opposing the California law, and has won support from the Obama administration. The suits contend the law setting bail amounts for specific crimes discriminates against low-income defendants.
Bail bond companies say the system promotes public safety by giving defendants an incentive to show up in court. Opponents of the system argue that judges can protect the public just as well by evaluating defendants individually and setting conditions for supervised pretrial release.
San Francisco Sheriff Vicki Hennessy had been the sole defendant in the case. But on Nov. 1, Herrera, who had represented Hennessy, said he considered the bail law unconstitutional and would not defend it in court. Hennessy said the law was arbitrary and unfair but she would continue to enforce bail in the amounts set by San Francisco judges until courts said otherwise.
At the same time, Assemblyman Rob Bonta, D-Alameda, said he would introduce legislation to eliminate bail requirements that punish poor people “simply for being poor.”
Harris’ office has defended the law in a separate suit in Sacramento, where a federal judge has rejected claims of discrimination. The attorney general was originally a defendant in the San Francisco case as well, but she was dismissed as a defendant in February when U.S. District Judge Yvonne Gonzalez Rogers ruled that the Constitution barred such a suit against the state.
Harris has chosen to re-enter the case, however, since the city’s opt-out left the law without a defender.
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