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Fairness of state’s bail system to the poor under review

San Francisco Chronicle logo San Francisco Chronicle 10/29/2016 By Bob Egelko
close-up scales of justice © Fry Design Ltd, Getty Images close-up scales of justice

Requiring people who have been arrested to pay bail to get out of jail may be unfair to the poor, California’s chief justice said Friday as she named a task force to study possible changes to the state’s bail system, which is also being challenged in federal court.

“This is an equal-access-to-justice issue here in California and nationally,” Chief Justice Tani Cantil-Sakauye said in announcing the appointment of 11 trial judges and a court administrator to look into pretrial detention practices around the state. She asked them to present their recommendations by December 2017.

California law requires counties to set monetary bail for different crimes but leaves counties free to determine the amounts. Bail levels vary between counties but can amount to hundreds of thousands of dollars for some of the more serious offenses. Defendants usually post bail through bond companies that charge a 10 percent fee.

Lawsuits challenging the bail schedules in San Francisco and Sacramento counties argue that the system is discriminatory because it keeps poor people in jail awaiting trial while wealthier defendants charged with the same crimes can go free.

Lawyers for the counties and bail bond companies argue that the system promotes public safety by giving defendants an incentive to come to court. Plaintiffs in the court cases say the same goals could be accomplished evenhandedly by monitoring defendants, electronically and otherwise, and taking other steps to bring them to court.

Cantil-Sakauye raised similar concerns in her annual State of the Judiciary speech to the Legislature in March, saying a system of supervised release after arrest might be both more effective and fairer than cash bail. “We must not penalize the poor for being poor,” she said.

The Obama administration weighed in with a filing in an Alabama case in February saying a system requiring a specific amount of bail for each crime, without regard for the ability to pay, violates constitutional standards of equal protection and is also “bad public policy.”

A federal judge in Sacramento reached a different conclusion last week, dismissing a claim that the bail system violated equal protection of the laws.

“The state’s interest in ensuring criminal defendants appear for trial dates is a legitimate one, and detaining individuals before their arraignment is rationally related to that legitimate interest,” said U.S. District Judge Troy Nunley, an appointee of President Obama.

Nunley refused, at least for now, to dismiss a claim that the bail system is unfairly punitive.

Attorney Phil Telfeyan of Equal Justice Under Law, a nonprofit that has challenged bail systems in California and six other states, said Friday the ruling would help his case by requiring defenders of bail to justify the system.

“Why is detaining all people who can’t afford money bail (the only practical) way to make sure folks will show up for court?” Telfeyan asked.

In a separate case, U.S. District Judge Yvonne Gonzalez Rogers of Oakland allowed a challenge against the bail system in San Francisco to proceed last week. One plaintiff in that case said she was held for two days on a theft charge, unable to raise bail of $30,000, and lost her job at the Oakland airport before prosecutors dropped the case.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko

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