City Attorney Dennis Herrera has refused to fight a class-action lawsuit challenging the constitutionality of San Francisco's bail system because he agrees it unfairly punishes the poor, but whether she agrees with Herrera or not, California Attorney General and Senator-Elect Kamala Harris will step in to defend San Francisco against the legal challenge. To do so, Harris will seek approval from a federal judge in Oakland, her spokesperson Kristin Ford said yesterday according to the Chronicle.
The lawsuit, which was filed in October 2015 by a Washington, DC-based civil rights nonprofit called Equal Justice Under Law, claims that 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." Equal Justice Under Law has challenged cash-bail systems in several cities including Sacramento, arguing against state law that requires courts to set bail, by county, based on the severity of an alleged crime. The way the system works now, if bail isn't paid, criminal defendants remain in jail until they're charged and arraigned, usually for two days following their arrest. At that point, a judge sets conditions for their pretrial release, sometimes including bail and based on an assessment of the defendant's danger to the public and likelihood of fleeing town.
In San Francisco, Equal Justice Under Law's class-action case argues on behalf of two local women and originally named the state and the city as defendants. Those claims against the city and state were dismissed, but later, Sheriff Vicki Hennessy was added as a defendant, with the City Attorney's office acting as her council. Then, in a court filing, City Attorney Herrera wrote that he wouldn't be. "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."
Herrera could have appointed someone to defend the case in his stead, but it's possible he saw Kamala Harris coming. A spokesperson for his office told the Chronicle's token conservative Debra Saunders that "It’s highly unlikely there’s going to be nobody to defend the law." She was worried that would leave the bail bondsmen's lawyers to do what should be Herrera's job.
Money bail can still have its place in a reformed bail system, Saunders seemed to argue, but "reform won't happen if no one defends San Francisco." Well, now someone will. In Sacramento, Harris's office has already defended the law in a separate suit. In that instance, a federal judge rejected claims that it was discriminatory.