A lawsuit filed by Washington, DC-based civil rights nonprofit Equal Justice Under Law almost exactly a year ago has a pretty good point about San Francisco's bail system - which many feel is unfair, concedes City Attorney Dennis Herrera, and he won't defend against the arguments of that suit. Those charges: San Francisco perpetrates a "wealth-based pretrial detention scheme, which operates to jail some of San Francisco’s poorest residents solely because they cannot pay an arbitrary amount of money." The suit goes on to argue that that would constitute a violation of the 14th amendment and its legal assurances of due process and equal protection under the law.
The Equal Justice Under Law class-action suit was filed on behalf of two local women and named the state and the city as defendants, later adding Sheriff Vicki Hennessy, who was not yet at her current post. The claims against the city and state were dismissed, but those against Hennessy remained, and the City Attorney's Office acted as her legal counsel. The class-action suit was one in a series of several such legal actions aimed at reforming bail systems around the country. That push was successful in smaller cities within Alabama, Kansas, Missouri, Mississippi, and Louisiana, where municipal bail practices have been altered.
“Keeping people locked up for no reason other than they can’t afford to post bail can have far-reaching consequences,” Herrera said according to a press release. “People lose their jobs and their homes. Families fall apart. Taxpayers shoulder the cost of jailing people who don’t need to be there. In other words, the current bail system is not just unconstitutional, it’s bad public policy.”
Per Herrera's court filing today: “This two-tiered system of pretrial justice does not serve the interests of the government or the public, and unfairly discriminates against the poor. It transforms money bail from its limited purpose in securing the appearance of the accused at trial into an all-purpose denial of liberty for the indigent. 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.” In the past, Hennessy has observed that an estimated 80 to 85 percent of inmates in city jails are awaiting trial. Longer pre-trial periods are associated with unemployment, lost housing, and even considered a contributing factor to the nation's mass incarceration epidemic.
In his own reform effort, District Attorney George Gascón was trotting out an algorithmic approach this summer, a less arbitrary method intended to counterbalance a person's pending charges, age, rap sheet, and record of appearing in court. "When we talk about releasing people based on money, we are really ignoring the risk that that person presents or does not present to public safety," Gascón explained.