SF DA Policy: “Pretrial detention will be based on public safety, not on wealth.”
SAN FRANCISCO – Bail reform has become a centerpiece to the progressive reform movement of the criminal justice system. And while it seems like a key plank for progressive prosecutors, it is not without controversy.
The criminal justice world has seemingly focused exclusively on New York and the controversy over bail reform, which prompted Professor John Pfaff at the Symposium at UC Hastings in San Francisco on Friday to quip that “in New York, every crime is the fault of bail reform” – he quipped even about those that happened in 2004.
On January 22, newly-elected San Francisco DA Chesa Boudin fulfilled one of his key campaign promises as his office announced a formal policy “ending the practice of prosecutors asking for cash bail as a condition of pretrial detention.”
Under the new policy, whether someone will remain incarcerated pretrial will no longer be based on wealth or poverty, but instead will rely on risk.
In a release, the office stated: “By replacing money bail with a risk-based system, people who are safe to be released get released quickly with appropriate, non-monetary conditions, and those who pose a serious threat to public safety are detained, regardless of their wealth.
“For years I’ve been fighting to end this discriminatory and unsafe approach to pretrial detention,” District Attorney Chesa Boudin said. “From this point forward, pretrial detention will be based on public safety, not on wealth.”
To see what that policy looks like on the ground, the Vanguard went into Department 9’s arraignment court at the Hall of Justice in San Francisco on Monday. Of the four arraignments, two of them resulted in pretrial release while two others resulted in pretrial detention.
In the first case, a man faced not only new criminal charges but revocation of his probation. In the case of Arson Gozarian, the Public Safety Assessment tool (PSA) recommended release on ACM (Assertive Case Management).
Under the new rules of Pretrial Release there are various levels of supervision for release. These include OR (own recognizance) with no active supervision (NAS), OR-minimum, and ACM which is the highest condition before you get to things like electronic monitoring and home detention.
In the case of Mr. Gozarian, while the DA in the case is willing to go along with the PSA, because Mr. Gozarian is being held on a motion to revoke probation, the judge rules for the DA, holding him on no bail rather than the release on ACM as requested by the public defender in the case, Christopher Garcia.
Gilberto Jimenez Franco
In the next case, Gilberto Jimenez Franco has no priors. Mr. Garcia, appointed to represent him, asked for OR, arguing that he did not have an active part in the robbery and, at most, received stolen items.
He argued for release on NAS.
The DA argued that he should be released but with minimum supervision. The defense said that he was not ID’d by the victim of the robbery. However, the DA argued that detention would not be appropriate in this case.
The judge ordered him released with OR-minimum, noting that there are still some pending matters in his case which may result in additional charges and could warrant revision of his custody status.
In the case of Shakia Vanderbilt, once again, Mr. Garcia was appointed counsel. She faced charges for robbery and assault with a deadly weapon for an alleged incident that occurred in October.
Mr. Garcia argued for release on OR-minimum, arguing that Ms. Vanderbilt has two children, including one with Down’s syndrome and a resulting heart condition.
Ms. Vanderbilt had multiple holds from other counties. The DA in the case asked for a motion to revoke her misdemeanor probation and release her on some sort of monitor.
The judge ordered her released on OR-minimum. However, because of her warrants in other counties, she will not be released, although Mr. Garcia represented to the court that her matters in the other counties would be resolved fairly quickly.
The case of Winston Guerrero represented the biggest point of dispute between the prosecution and defense. Mr. Guerrero faces three counts of criminal threats – stemming from a series of text messages threatening to kill the complaining witness. He also faces charges for inflicting corporal injury, assault by means likely to produce great bodily injury and false imprisonment.
Assistant DA Courtney Burris asked for a no-bail hold, arguing that the threats and assaults occurred over the course of an eight-month time period.
After drinking in September, the defendant allegedly strangled the complaining witness for five minutes, and grabbed her by the hair.
On September 7, he texted threats to her friend: “I just want to see her dead,” “I want to see that b-tch dead,” and “Not going to play with me anymore.”
Ms. Burris argued that Mr. Guerrero was the highest risk factor in that he not only made the threats but carried out assaults, including the strangulation almost to the point of loss of consciousness.
Deputy Public Defender Nick Vangrin in contrast pointed to credibility issues with the account of the complaining witness and argued that, while the texts are concerning, many of the assault charges are unverified at best. For example, he argued, the strangulation event resulted in no injuries and no police involvement.
He pointed to a complaint by her that Guerroro came to her work and stole her phone – but the story in that case continued to shift.
He noted that Mr. Guerrero has a good job at a Round Table and is the sole caregiver for his mother.
Mr. Vangrin argued for home detention and a GPS monitor with a stay-away order.
Ms. Burris argued that home detention in this case was not going to prevent anything.
The judge in this case agreed with the DA and ordered Mr. Guerrero held without bail. He noted the threats against the complaining witness were “concerning” and noted that this was not simply a “one-off.”
He agreed with Ms. Burris that a protective order with an ankle monitor was insufficient to protect the complaining witness in this case, given the specificity of the threats.
He said there was “a legitimate threat to safety.”
Mr. Vangrin asked for a bail review hearing which will take place on Friday.
Speaking with the Vanguard on Wednesday, Mr. Vangrin continued to disagree with the judge’s decision to hold Mr. Guerrero without bail.
“He should have been released,” Mr. Vangrin explained. “The main reason was the credibility of the witness.”
He said that, under the guidelines, “the presumption must be great that what (allegedly) happened, actually happened. The credibility of the person, in this case the complaining witness, is relevant and important to determined whether he should be held without bail.”
He noted a lack of photos as well as a fake ID that the complaining witness had to drink alcohol in an establishment. He also noted that the text messages were in Spanish and translated by the police, leading to questions as to whether they “warped” the translation to make them appear more serious than they actually are.
“If there were no text messages, he would have been released,” he said.
He noted, “She lied to the police in the police report.”
Among the reasons to eliminate cash bail has been the financial harm of pretrial detention combined with the heightened pressure to admit to a crime in order to gain release.
In this case, Mr. Guerrero’s detention will cause a hardship not only for him but for his family.
“He was the sole provider in his family or at least one of the main providers,” Nick Vangrin said. “He’s a manager at Round Table and I’m sure he’s going to lose his job. That’s a good job for someone who doesn’t speak English.”
But the DA’s office viewed it differently.
In this case, “the threat to kill (the complaining witness) necessitated a no-bail detention for the defendant,” Alex Bastian, a spokesperson for the San Francisco DA’s office told the Vanguard.
He noted that the new policy for pretrial detention is considered in order from least restrictive to most restrictive.
The policy notes: “The least restrictive condition or combination of conditions for release must be determined to be inadequate to protect public safety and to reasonably ensure the defendant’s return to court before considering the next least restrictive condition.”
The policy further notes: “All pretrial release conditions requested shall be reasonably related to the charges, and necessary to protect the public and to reasonably ensure the defendant’s return to court.”
As the judge noted in this case, the combination of the assault with the threats was enough for him to believe there was significant public safety threats that could not be protected by release with monitoring.
Mr. Bastian told the Vanguard he believes that the defendant in this case would have been held without bail even prior to the changes with the bail law.
DA Chesa Boudin told the Vanguard that “ending money bail in San Francisco means replacing a wealth-based system with a risk-based system.”
He added, “We will no longer allow people who pose a serious public safety risk to be released pretrial, whether they are wealthy or not.”
As it turns out, money bail is not completely gone from San Francisco. On Tuesday afternoon, another man was freed on bail by Judge Jacobs in a vehicular manslaughter case. He received $100,000 bail in a case represented by a private attorney. The DA’s office had not asked for bail in that case either.
—David M. Greenwald reporting