All Hail Bail Reform

The San Francisco Public Defender's Office attacks the city's high cash bail system – one case at a time.

Kenneth Humphrey, 64, has been in jail since May 23. The retired shipyard worker was arrested last spring after he allegedly followed an elderly neighbor into the neighbor’s home, stealing $5 and a bottle of cologne. The crime was small, but the price he’ll pay is not: Humphrey’s been charged with first-degree residential burglary, elder abuse, and theft. Despite having a clean criminal record for the past 14 years, he was assigned a $600,000 bail. It was later reduced to $350,000 — but it’s still far beyond his financial capacity to pay.

San Francisco Public Defender Jeff Adachi believes this extremely high cash bail system — and the way that it’s been used to imprison people like Humphrey — is unacceptable.

“This case was outrageously overcharged from the beginning,” he says. “To add insult to injury, Mr. Humphrey has been kept behind bars without any consideration of releasing him on pretrial supervision. It is fundamentally unfair to lock people up solely because they are too poor to buy their freedom.”

Based on data Adachi’s office collects, approximately 50 people are booked into San Francisco’s County Jail each day, adding up to around 18,000 people each year. Of the city’s inmates currently in prison, only about 15 percent have been convicted. The remaining 85 percent — many of whom simply can’t afford bail — remain locked up, often losing their jobs, homes, or custody of their children.

Those who do manage to make bail often do so with help from friends and family members who scrape together the cash. The Examiner reports that residents spend between $10 million and $15 million on nonrefundable bail fees each year.

And the problem is unequivocally tied to race. After studying 10,700 San Francisco case records from 2011 to 2014, the Quattrone Center for Fair Administration of Justice released a report that shows Black defendants are held in pretrial custody for an average of 30 days, 62 percent longer than white defendants.

Once trials begin, it takes an average of 90 days to process Black defendants’ cases, compared with 78 days for whites.

Both of these delays — and the high bails they’re linked to — are complicated by the fact that poverty rates in the defendant’s’ neighborhood of residency was higher for Blacks (15 percent) than for Latinx (11.5 percent) or whites (9 percent).

Adachi has long been an advocate of abolishing this system, and he’s not alone. Last year, his office teamed up with nonprofit Civil Rights Corp to overturn money bail, and, using Humphrey’s case as an example, the duo filed a suit alleging that the city’s bail system violates the principle of equal protection, making it unconstitutional.

Chesa Boudin, a deputy public defender in San Francisco who serves on the board of the Civil Rights Corps, says the system judges use to determine bail is deeply flawed.

“Instead of making findings based on evidence, judges use access to money to determine who stays in jail and who is released,” he says. “This system has nothing to do with public safety, because it allows dangerous rich people to buy their freedom while incarcerating poor people who pose little or no risk.”

Now, the Public Defender’s Office has taken its efforts a step further. On Oct. 10, Adachi’s team began challenging every cash bail amount a judge sets on cases in which the defendant’s financial circumstances and alternatives to incarceration are relevant (as opposed to criminal history and likelihood of recidivism).  

The move is a sly one, and holds California’s Attorney General Xavier Becerra accountable, after he made a claim on Oct. 2 that he would not defend the practice of setting high bails simply to keep people in jail, without considering ability to pay.

By tackling the issue on a case-by-case basis, Adachi’s campaign is disrupting the Hall of Justice. Since Oct. 10, the Public Defender’s Office has filed more than 280 challenges to felony and misdemeanor cases — 14 times the amount normally filed in the same period. Each requires a hearing, where the judge assigning bail must review the defendant’s finances and any alternatives to incarceration, instead of simply handing out pre-set bail amounts.

“By blindly relying on the bail schedule without considering each individual’s ability to pay or alternatives to incarceration, judges are violating the rights of thousands of San Franciscans,” says Adachi. “By filing challenges on behalf of each client behind bars, we intend to abolish San Francisco’s bail assembly line that wreaks havoc on families while ignoring constitutional rights. “We refuse to be complicit in the mass incarceration of poor people and people of color who are disproportionately stopped, arrested, and locked up,” he adds.

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