Federal judge: Bail that kept SF man behind bars since July ‘unconstitutional’

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A federal judge delivered another blow Wednesday to California’s bail system, overturning the $330,000 bail for a San Francisco man with a long criminal record who has been held since July on charges of home burglary and auto theft.

The case of James Reem is one of several current challenges to a system that has recently come under fire for basing the amount of bail on the charges and a defendant’s past criminal record without considering his or her ability to pay.

The bail-bond industry argues that requiring defendants to post bail before release makes them more likely to show up in court, but opponents say the system penalizes the poor while failing to protect the public.

Prosecutors say Reem, 53, has 19 previous criminal convictions and faces up to 22 years in prison if convicted of the current charges. A Superior Court judge set his bail July 28 using San Francisco’s bail schedule, and Reem has been unable to come up with the amount or the nonrefundable 10 percent fee he would need to pay for a bail bond.

Lawyers in the office of Attorney General Xavier Becerra — who has called the state’s bail system unfair to the poor — did not defend the amount of Reem’s bail when Reem unsuccessfully challenged it in state courts, or in his renewed challenge in federal court. But they did argue that federal courts could not intervene because of a 1971 U.S. Supreme Court ruling that bars federal judges from interfering with ongoing state criminal prosecutions.

U.S. District Judge Charles Breyer of San Francisco disagreed Wednesday and said Reem was being held unconstitutionally because his bail was so high that it amounted to detention without trial. He delayed enforcement of his order for 48 hours to allow a Superior Court judge to decide whether Reem must be kept in jail to protect the public, or to come up with a release plan with conditions to assure his appearance at trial.

Rejecting excessive bail “will have no direct effect on Reem’s prosecution” and thus is not prohibited by the Supreme Court ruling, Breyer said.

Reem’s lawyers said he has lived in San Francisco since 1979, formerly worked as a painter and has recently struggled with homelessness and unemployment.

The ruling is “an indictment of the cash bail system that imprisons thousands of people simply because they’re unable to afford monetary bail,” said attorney Katherine Hubbard of the nonprofit Civil Rights Corps who helped to represent Reem.

Reem is being prosecuted by the office of District Attorney George Gascón, who has also questioned the bail system. In response to the ruling, spokesman Maxwell Szabo said Gascón “recognizes that financial status is not a proxy for risk, and that’s why he was one of the first to advocate for an approach that leans on science to make difficult predictions based on human behavior.”

Gascón “also firmly believes that some defendants, rich or poor, pose too great a risk to the community to be released from custody pending trial,” Szabo said.

Another federal judge, Yvonne Gonzalez Rogers of Oakland, is scheduled to hear a broader challenge to the constitutionality of the bail system Dec. 12, filed by two Bay Area women who were held in jail because they were unable to afford bail, and who were ultimately released without charges. The bail-bond industry stepped in to defend the system after Becerra’s office and San Francisco Sheriff Vicki Hennessy declined to do so.

The state Supreme Court’s chief justice, Tani Cantil-Sakauye, has criticized cash bail and appointed a task force that recommended a pretrial release system based on assessment and monitoring of individual defendants. Legislation along those lines failed to clear either house of the Legislature this year, but supporters hope to revive it next year after negotiations with Gov. Jerry Brown.

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