Herrera, Hennessy secure settlement to eliminate bail schedule in San Francisco and speed defendant assessments

San Francisco reaches pioneering agreement that protects public safety and eliminates an unconstitutional system that let the wealthy pay their way out of jail

City Attorney Dennis Herrera

SAN FRANCISCO (Aug. 30, 2019) — City Attorney Dennis Herrera and Sheriff Vicki Hennessy today announced that they have reached a proposed settlement in a federal class-action lawsuit brought by a national civil rights group over the pre-arraignment bail system.
In 2016, Hennessy and Herrera took the groundbreaking step of declining to defend the constitutionality of a state law that requires the Sheriff to release pre-arraignment defendants who post bail according to a bail schedule set by the San Francisco Superior Court.  After years of litigation in which the California Bail Agents Association intervened to defend the state law, U.S. District Court Judge Yvonne Gonzalez Rogers ruled that the pre-arraignment bail system was unconstitutional. The question that remained was what to do next. Hennessy and Herrera vigorously pursued a solution to ensure that pre-arraignment defendants who are eligible for pre-arraignment release can be more quickly considered for release by the Superior Court.
“One system of justice for the rich and another for everyone else isn’t justice at all,” Herrera said. “San Francisco led the way when we refused to defend an unconstitutional bail system that allowed the wealthy to pay their way out of jail, even if they posed a danger to the public. Today, we’re leading again by proposing a system that takes money out of the equation. Justice is better served when decisions are based on the facts, not on the size of someone’s bank account. Our proposal safeguards civil liberties by ensuring low-level cases are assessed quickly, and it protects public safety by guaranteeing no one accused of a serious or violent crime is released without judicial review. We could not have made such progress without the bravery and leadership of Sheriff Hennessy, the only sheriff in California with the courage to take on this issue.”
“I’ve worked in and around the county jails for more than four decades,” Hennessy said. “People with means pay their bail and leave jail pre-arraignment while others who don’t have the money may remain incarcerated. While we have a robust pretrial risk assessment and release program, the Superior Court bail schedule created an unequal playing field for some pretrial releases. With this settlement, the Sheriff will no longer release people according to the court’s bail schedule.”
“I am grateful to City Attorney Dennis Herrera and his team, including Deputy City Attorneys Jeremy Goldman and Neha Gupta,” Hennessy said. “Our City Attorneys persevered over several years to reach an agreement that ensures both the safety of our communities and a fair system of pre-arraignment release.”
The settlement agreement requires approval by the court and the Board of Supervisors to become final. Under the proposed agreement filed in court today, in cases that do not involve serious or violent felonies or other charges listed in California Penal Code section 1270.1(a), the following would apply:

  • Within eight hours of a person’s identity being confirmed in the jail, the Own Recognizance Project will submit a public safety assessment to San Francisco Superior Court for review.
  • The court then reviews the public safety assessment to make a decision on release. If no decision has been made after a total of eighteen hours from the time the person’s identity was confirmed in the jail, the determination of the public safety assessment would take effect, requiring the Sheriff to release or detain the defendant as indicated.
  • At any time during the 18-hour window, a law enforcement officer can file a declaration that automatically extends the time by twelve hours, giving the Superior Court additional time to render a decision before the determination in the public safety assessment takes effect.  

These provisions would not apply to defendants charged with serious or violent felonies or other offenses listed in California Penal Code section 1270.1(a). Under current law, while these defendants can obtain release by posting bail via the bail schedule, they are not eligible for pre-arraignment Own Recognizance release. The plaintiffs in this lawsuit have requested that the judge rule on whether to allow defendants charged with these serious or violent felonies to seek pre-arraignment judicial review allowing their release.  Hennessy and Herrera did not stipulate to the request and take no position on whether the federal court should adopt it.  Such cases would not be covered by the timelines in the agreement regardless of the federal court’s decision.
Case Background
In California, people arrested on suspicion of a crime are generally held in jail pending a judicial decision unless they can pay a pre-established bail amount determined by what’s called a bail schedule, which does not consider whether release would pose a public safety risk. The case challenged the state law that requires superior court judges in each county to establish a bail schedule and requires sheriff departments to release anyone who pays. Herrera and Hennessy took legal issue with the bail process that exists prior to arraignment, when a judge or judicial officer has not had the opportunity to review the circumstances and make an individualized bail determination based on all factors.
A Washington D.C.-based national civil rights group, Equal Justice Under Law, filed a federal class-action lawsuit in U.S. District Court for the Northern District of California on Oct. 28, 2015, alleging that the California bail system is unconstitutional. The City Attorney’s Office is the Sheriff’s legal counsel.
The case is: Buffin et al v. City and County of San Francisco et al, U.S. District Court California Northern District (Oakland), case number 4:15-cv-04959-YGR, filed Oct. 28, 2015.  Additional documentation from the case is available on the City Attorney’s website at: www.sfcityattorney.org.

# # #