Attorney general’s court filing prompts new bail debate

SACRAMENTO — California Attorney General Xavier Becerra signaled through a recent court filing that he won’t defend the state’s current money bail system.

Becerra is the latest of several public sector attorneys in the state who declined to uphold the status quo on bail. This includes his predecessor, Kamala D. Harris, who did not defend California’s bail system in a federal case last year.

While others have called for changes there is no consensus on what would replace bail and, as a recent murder in San Francisco showed, any change to the bail system might be blamed when a released offender commits a terrible crime.

The latest chapter in California’s bail debate started Wednesday, when San Francisco Public Defender Jeff Adachi announced his office has filed a challenge in every single criminal case in which bail was set since Oct. 10.

This amounted to 282 cases as of Wednesday. Adachi said that his office has been successful in lowering or eliminating bail in nearly one out of every five cases, though he said defendants often still couldn’t afford to get out of jail.

“My hope is that other public defender’s offices and defense attorneys will do the same,” Adachi said. “This will have the effect of forcing the courts to address the fact that they’re setting bails without regard for a person’s ability to pay.”

Contra Costa County Public Defender Robin Lipetzky said Wednesday that bail challenges are not uncommon. “Public defenders do that every single day in courtrooms all across the state,” she said.

Lipetzky, a board member of the California Public Defenders Association, noted that bail agents are among the groups that would oppose the end of money bail.

“Given a choice between making less profit and going out of business, they would rather advocate for adjustments that preserve their industry,” she said.

In a news release announcing the challenges, Adachi cited “a quiet but dramatic shift in California Attorney General Xavier Becerra’s position on bail.”

This came in an Oct. 2 reply from Deputy Attorney General Katie L. Stowe to the 1st District Court of Appeal, which had asked Becerra to justify why a 64-year-old defendant should be kept in jail. In re: Kenneth Humphries, A152056 (Cal. App. 1st Dist., filed Aug. 4, 2017).

“The Department of Justice has determined that it will not defend any application of the bail law that does not take into consideration a person’s ability to pay, or alternative methods of ensuring a person’s appearance at trial,” Stowe wrote.

Identical language appeared in a December motion from Harris’ office explaining they would offer only a limited defense to a challenge to the money bail system in Sacramento County. Welchen et al. v. County of Sacramento, 16-CV00185 (E.D. Cal., filed January 29, 2016).

That same week, Harris filed a notice of non-intervention in a case claiming San Francisco’s bail system violates the rights of poor defendants. Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

That move came after San Francisco City Attorney Dennis Herrera and other local officials said they wouldn’t defend the case.

In March, U.S. District Judge Yvonne Gonzalez Rogers granted the California Bail Agents Association the right to intervene to defend the bail system.

The organization’s attorney, Harmeet Dhillon, said the group is open to changes to bail. She added that courts have repeatedly ruled that poor people are not a protected class under the U.S. Constitution.

“I think there are a lot of good reasons why someone might want to tweak California’s bail law, but the proposition that it is unconstitutional is entirely unsupported by the law,” said the owner of Dhillon Law Group Inc. in San Francisco. Dhillon noted that Adachi is using current law to challenge bail amounts.

“If public defenders or defense counsel around the state had been exercising that right regularly, we might not be seeing the type of constitutional challenge to the statute that we are fighting in San Francisco,” she said.

The plaintiff’s attorney in both Buffin and Welchen is Phil Telfeyan, the executive director of Equal Justice Under Law. The Washington, D.C.-based group has filed challenges to money bail in multiple states.

“Attorney General Becerra explicitly stating that the Department of Justice will not defend money bail is an important extension to the strides made last year in our case and a significant step toward ending money bail across the state,” Telfeyan said by email. Becerra has gone further than Harris in the rhetoric he has used to advocate for changes in the bail system, Telfeyan said.

In a statement, the California Department of Justice said Becerra “has made clear his view that the current bail system unfairly penalizes poor people.”

The office cited tweets by Becerra supportive of a report released this week by a working group convened by Chief Justice Tani Cantil-Sakauye. A panel of judges and others recommended an end to money bail in California.

The panel’s co-chair, Ventura County Superior Court Judge Brian Back, said the goal is to give judges as much relevant information as possible to determine the risk of releasing a defendant.

“One of the big misconceptions people have is that we are talking about taking a formula or an algorithm,” Back said. “That is simply not true.”

An algorithm allegedly led to the July release of a defendant being held for gun and parole violation charges in San Francisco. Days later, he allegedly robbed and murdered a 71-year-old photographer at the city’s Twin Peaks lookout spot.

As terrible as the killing was, Back said, some people will commit serious crimes after being released no matter what system the state uses.

“You don’t think people don’t do heinous acts while out on bail?” Back said. “Oh boy, do they.”

Staff Writer Chase DiFeliciantonio contributed to this report.