Money bail critics pressed for alternatives

What does a plausible alternative to the money bail look like?

It's a question that has dogged proponents of ending the current system.

For instance, the plaintiffs in a major case challenging the bail system in San Francisco recently filed a revised notice of plausible alternatives at the request of the judge. Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

Meanwhile, a bill to overhaul the money bail system has not been amended in more than six months. According to multiple sources speaking on background, key players including Gov. Jerry Brown and Chief Justice Tani Cantil-Sakauye continue to have concerns about SB 10 as currently drafted, even after sections of it were overhauled in September. Articulating a replacement appears to also be a factor with the bill.

The lead attorney representing the California Bail Agents Association said it is far easier to criticize the current system than to articulate a replacement for decades of laws and legal infrastructure.

"The United States has a system that is uniquely protective of the rights of criminal defendants, dating back to our Constitution," said Harmeet K. Dhillon of Dhillon Law Group in San Francisco. "Given that careful framework that has built up over the years, it wouldn't be fair to compare the American system to that of foreign jurisdictions that don't have all of the protections for defendants that we do."

At the same time, some public defenders are having success more aggressively challenging bail in particular cases. Ironically, this could strengthen an argument made by some bail supporters -- that defense attorneys are not using all of the tools already at their disposal to fight excessive bail.

For instance, the San Francisco County public defender's office announced on Wednesday it had obtained the release of James Reem, who had been detained since being arrested in July on charges of burglary and auto theft.

They challenged his $330,000 bail in federal court, arguing it was so high it amounted to detention without trial, in violation of his due process rights. Reem v. Hennessy, 17-CV06628 (N.D. Cal., filed Nov. 16, 2017).

"This court has granted the superior court two additional opportunities to articulate a constitutional basis for detaining Reem," wrote U.S. District Judge Charles R. Breyer in his Monday order. "Both times, the superior court has failed to do so."

The lead plaintiffs' attorney in Buffin hailed the ruling.

"More and more courts are recognizing the unconstitutionality of California's bail system," said Phil Telfeyan, executive director of the Washington, D.C.-based organization, Equal Justice Under Law. "Judge Breyer's recent decision highlights all the points we're been making in our class action lawsuit all along."

Telfeyan also addressed the supplemental brief he filed on Friday along with a pair of pro bono attorneys with Latham & Watkins LLP who were recently added to his team. He characterized the revised version as a "supplemental" to the notice he filed last month.

The first version he submitted to U.S. District Judge Yvonne Gonzalez Rogers cited specific, non-monetary, pretrial, release systems in use in Colorado and Washington, D.C., as well as efforts in San Francisco and Santa Clara counties that could be expanded.

The latest version instead discusses computerized risk assessment and interview-based methods, as well as the possibility of combining the two, but does not discuss specific jurisdictions.

"The plaintiffs don't have the burden to tell San Francisco to mimic something that has already happened somewhere else," Telfeyan said. "We're identifying categories of alternatives that San Francisco could possibly employ."

Sen. Robert Hertzberg, D-Van Nuys, heavily revised his bill last fall after the Judicial Council sent a letter in June raising concerns over costs, judicial discretion and other issues. The Judicial Council still lists it as a bill of concern, partly due to a lack of key specifics.

"The outside momentum we're seeing around the issue of bail reform has been very encouraging as we continue to meet with stakeholders on all sides of the debate," Hertzberg said.