On Friday, a Federal Court Judge, Yvonne Gonzalez Rogers, who previously in March, declared San Francisco’s use of a money bail schedule unconstitutional, indicated that she would determine the plan for remedying the condemned constitutional violation.
The action stems from the lawsuit that the non-profit, Equal Justice Under the Law filed against the bail system in 2015 and which Director Phil Telfeyan spoke on at the Vanguard event in 2016.
They maintain that detaining people by use of the money bail system is unconstitutional.
“It violates the Due Process Clause of the 14th Amendment,” Mr. Telfeyan told the Vanguard Tuesday in a phone interview. The Federal Court in March agreed with that view. “The Judge ruled on March 4 of this year that the money bail schedule is unconstitutional. It creates an unjustified inequality between rich and poor.”
Judge Rogers in March, ruled that the San Francisco’s application of California state law requiring a bail schedule is unconstitutional because it “replaces the presumption of innocence with the presumption of detention.”
Since March both sides have met to attempt to determine the remedy for this problem. The two sides, however, were unable to reach an agreement and Judge Rogers indicated on Friday that she would issue an injunction preventing San Francisco Sheriff Vicky Hennessy from unconstitutionally using the money bail system.
Mr. Telefyan told the Vanguard that while they don’t know what this ultimately means, he said, “at minimum rich arrestees and poor arrestees are going to be treated the same in San Francisco.”
He added, “Right now in San Francisco there’s a price tag for freedom. If you’re rich enough to pay money bail, you buy your way out. If you’re too poor, you sit in jail for days, weeks or months, 
while your waiting for your case.”
“That fundamental inequality will end,” he said. “How it ends is kind of where the details come in and that we don’t know.”
Both sides made proposals before Judge Rogers.
The plaintiffs want those held on money bail to be released on an unsecured bond with the promise to appear.
“In other words, they would have to pay no money up front,” Mr. Telfeyan said. “We thought that would equalize the playing field. Rich people could still buy their way out. The people who can’t afford to get out, could get out with unsecured bonds.”
On the other hand, Sheriff Hennessy and City Attorney Dennis Herrera are proposing what is effectively across the board detention.
As Mr. Telefeyan explained, “Everyone who gets arrested – rich or poor – gets detained until they go before a judge.”
Judge Rogers will then choose between one or the other, or perhaps a third option.
Mr. Telefeyan told the Vanguard, “It’s about night and day what the plaintiffs are proposing and what the sheriff is proposing.”
He added, “What’s amazing about this is that we thought the Sheriff agreed with us.”
Indeed, he pointed to past comments from both the Sheriff and City Attorney that seemed to indicate that they agreed that the bail schedule was unconstitutional.
For instance, long claimed to support the lawsuit, they appear to be going back on their prior public statements. Three years ago, Sheriff Hennessy agreed the bail schedule was unconstitutional, stating that money bail “unfairly discriminates against the poor” and is “an all-purpose denial of liberty for the indigent.”
Moreover, the City Attorney, Dennis Herrera had previously stated in a press release, “Keeping people locked up for no reason other than they can’t afford to post bail can have far-reaching consequences . . . . 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.”
Speaking of the Sheriff, Mr. Telefan noted that she talked about the harm of mass incarceration, the harm done by breaking families up, the financial burden of putting people into pretrial detention.
“She’s really done a 180-degree turn in her position,” he said. “Now saying basically, let’s lock everybody up.”
Phil Telefeyan noted that the judge said if that if she were to order what the Sheriff asked for, there would be tremendous political pressure for a new system to be put in place.
Mr. Telefeyan believes that if that is the case, “It won’t last long.” He said, “I think San Franciscans will be upset about it and the Sheriff is an elected official.”
Moreover, there is also SB 10 – the bail reform bill that was enacted by the legislature and signed by the governor last fall.
“It is completely inconsistent with the reforms the legislature enacted last September,” he said. “Those have been put on hold because they’re awaiting the referendum process.”
SB 10 would not go into effect until at least 2021 because the bail industry has qualified a measure on the ballot that could overturn it.
Under SB 10, there were some avenues for detention. But it was not across the board like the Sheriff is proposing. And there were a lot more avenues for release under that law.
Mr. Telefeyan added, “The Sheriff’s is also unconstitutional under California law which guarantees everyone the right to release under either bail or own recognizance unless they’re charged with a capital offense or unless it involved threats of great bodily injury.”
Finally, Mr. Telefeyan indicated that his organization has similar legislation in Sacramento. The San Francisco lawsuit is specific to the city of San Francisco. He indicated that a positive ruling, however, could have wider repercussions as other jurisdictions are likely to amend their bail rules to mirror the decision in San Francisco.
However, the suit against Sacramento is far broader as it targets the Attorney General which could mean statewide impacts for that one. However, that case has yet to be heard.
In general, though, Mr. Telfeyan indicated that he was surprised and disappointed with the Sheriff’s position on this.
In a statement, he said, “I am appalled that two respected city officials are going back on the public statements they have made throughout this case. Their proposal will only exacerbate the very problems that they previously acknowledged are unconstitutional. Locking everyone up means more jobs lost, more families torn apart, and more costs to taxpayers.”
—David M. Greenwald reporting
Phil Telfeyan speaks in Davis in November 2016 and describes the case that is still before Judge Rogers in Federal Court:
