Judge clears way, sending decision on bail to trial

SAN FRANCISCO -- A federal judge has cleared the way for trial to determine the constitutionality of bail requirements in San Francisco and statewide, ruling that defenders of the system must show it's the best and least-restrictive way to make sure that defendants who have been released from jail show up in court.

Critics of California's bail law contend in a lawsuit that the system, as applied in San Francisco, discriminates against the poor by keeping them in jail while wealthier people charged with the same crimes go free. It challenges the law's requirement that a defendant pay bail, or the nonrefundable 10 percent fee charged by bail bond companies, to be released after arrest.

In a ruling Tuesday, U.S. District Judge Yvonne Gonzalez Rogers of Oakland denied the plaintiffs' requests to declare the bail system unconstitutional without a trial, and by bail bond companies to dismiss the suit.

The judge said a trial is needed to determine whether requiring newly arrested defendants to post bail in order to gain their freedom violates their rights to liberty and equal treatment under the law.

She noted U.S. Supreme Court rulings overturning laws that effectively penalized people for being poor, such as a unanimous 1970 decision striking down an Illinois law that forced inmates to spend additional time in jail to work off fines they couldn't afford to pay. The ruling had the effect of invalidating similar laws in other states, including California.

Such rulings ``apply with special force in the bail context, where fundamental deprivations (of liberty) are at issue and arrestees are presumed innocent,'' Gonzalez Rogers said.

On the other hand, she said, plaintiffs in the suit must offer evidence of a ``plausible, less-restrictive alternative'' that would be at least as effective as the current bail system in San Francisco, where the suit was filed. At that point, Gonzalez Rogers said, it would be up to the bail bond companies to show that requiring bail is the best way to get a defendant to return to court for trial.

Lawyers for both sides said they were pleased with the ruling.

``Overall, it's a very positive development,'' said Phil Telfeyan, executive director of a nonprofit called Equal Justice Under Law. He said he would present evidence during the trial that a nonmonetary system, in which judges assessed the risk posed by each newly arrested person and set conditions for pretrial release, would be fairer and more effective than cash bail.

Harmeet Dhillon, lawyer for the California Bail Agents Association, said the judge had clarified the issues and had made it clear that it was up to the plaintiffs to show some practical alternative to the current system.

The lawsuit was filed in 2015 by Telfeyan's group on behalf of two San Francisco women who were kept in jail for one or two days because they could not afford bail, and were never charged by prosecutors. One woman said she lost her job as a result, and the second said she had to take out a loan that will take years to pay off.

Bail bond companies contend cash bail protects the public by giving defendants a strong incentive to appear in court. Gonzalez Rogers allowed them to enter the case after then-Attorney General Kamala Harris and San Francisco City Attorney Dennis Herrera said they considered the bail system unfair to the poor and would not defend it.

A state appeals court in San Francisco is considering a challenge to the system in a separate case, and legislation is pending in Sacramento that would repeal the bail requirement.