AG Harris Modifies Position on Bail, Calls It Unfair to Poor

Back in June, California Attorney General Kamala Harris (now outgoing as the Senator-elect), who said in a court filing that it was “constitutional for California to require criminal defendants to post bail,” has now modified her position in a court challenge to Sacramento County’s bail system.

In her filing on Tuesday, the attorney general “only defends the facial constitutionality of California’s bail law. The Attorney General will not defend any application of the bail law that does not take into consideration a person’s ability to pay, or alternative methods of ensuring a person’s appearance at trial.”

However, the filing continues to oppose the lawsuit, arguing, “Plaintiff’s facial challenge to California’s bail laws fail, because as a matter of law these laws do not violate his due process rights. Thus, the Court should dismiss this claim.”

The AG notes, “This case raises both a challenge to Sacramento County’s bail system, and a challenge to California’s state bail law. It arises in the context of a nationwide debate about the ways in which the justice system fails indigent individuals, by jailing persons who fail to pay set fines, penalties, or bail without taking into account their ability to pay. Such practices have for good reason been subject to intense scrutiny.”

The case in question involves a man arrested on January 29, 2016, by Sacramento police and accused of burglary.  He is indigent, and he was arrested and held on $10,000 bail.  He would file suit against the AG and Sacramento County, alleging “that enforcement of California Penal Code section 1269b (the Bail Law) and the County’s bail schedule, adopted pursuant to that law (Bail Schedule) discriminate on the basis of wealth, and thus violate his due process and equal protection rights.”

He alleges that Sacramento County has a “policy and practice” of “wealth-based detention.” The plaintiff further alleges that the AG is liable for “requiring imposition of money bail irrespective of an arrestee’s ability to pay.”

Phil Telfeyan, executive director of Equal Justice Under Law, who spoke at the Vanguard bail reform event last month, believes, “No person should ever be detained merely because she is unable to make a monetary payment.”

In a statement from Kristin Ford, spokesperson for the AG, to the San Francisco Chronicle prior to the filing, she indicated that the AG’s position was that “denying equal access to justice solely based on income is unconstitutional.”

“We will argue that it is unconstitutional for local authorities to impose bail in a way that does not consider a person’s ability to pay, or alternative methods of ensuring their appearance at trial,” Ms. Ford said.

“Cash-bail systems have a disparate impact on the poor — often times forcing people to choose between paying bail and going further into debt, or sitting in jail for days at the risk of losing their family, housing, or employment.”

However, the statement stops short of declaring that any system of monetary bail unconstitutional.

The San Francisco suit, which Mr. Telfeyan outlined in his talk at the Vanguard event, involves two women who were arrested and held in jail due to being unable to afford bail.  They eventually were able to be released by taking out a loan at the highest allowable interest rate.

These onerous payments remain in place even though the prosecutor declined to file criminal charges against the women.  The suit challenges existing law that requires a defendant to pay monetary bail, or the non-refundable 10 percent fee charged by bail bond companies, to be able to be released after arrest.

Mr. Telfeyan maintains that Ms. Harris’ position does not go far enough.  Her position still allowed judges to require people to pay substantial amounts of bail.  But her position does demonstrate a “fundamental recognition of the inequity of money bail.”

Back in October, San Francisco Sheriff Vicki Hennessy, the other defendant, and City Attorney Dennis Herrera have declined to defend the bail requirements.

The federal judge thus far has not allowed the California Bail Agents Association, representing bail bond companies, to enter as defendants in the San Francisco case.

“It is imperative that the (judge) permit CBAA to intervene to defend the law, which protects the public interest as well as serves the interests of justice by securing criminal defendants’ attendance in their court cases,” said the association’s lawyer, Harmeet Dhillon.

The bail association argues that the cash-bail system “does not make classifications based on wealth, but instead on the seriousness of criminal offenses.”

In the meantime, legislators Assemblymember Rob Bonta and Senator Bob Hertzberg have introduced legislation that would overhaul the state’s bail system – although details for those proposals are not yet available.

—David M. Greenwald reporting