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San Francisco city attorney won't defend city's bail schedule from civil rights lawsuit

San Francisco City Attorney Dennis Herrera believes the city’s bail schedule is unconstitutional and won’t defend it from a lawsuit making that allegation, the San Francisco Examiner, San Francisco Chronicle and Courthouse News reported Tuesday.

“This two-tiered system of pretrial justice does not serve the interests of the government or the public, and unfairly discriminates against the poor,” Herrera’s office wrote in an answer to the lawsuit’s third amended complaint. “It transforms money bail from its limited purpose in securing the appearance of the accused at trial into an all-purpose denial of liberty for the indigent.”

Herrera’s remarks came about a year after Buffin et al v. Hennessy was filed against the city and county of San Francisco and the state of California, alleging that the bail system discriminates against the poor. It’s one of multiple lawsuits filed by Equal Justice Under Law, a small Washington, D.C. nonprofit arguing that bail schedules—lists of offenses with corresponding amounts of financial bail—unconstitutionally penalize poverty. The organization is seeking an injunction against use of financial bail, which would force authorities to find a new way to determine which defendants may be released pending trial.

Herrera made his announcement as his office told federal district Judge Yvonne Gonzalez Rogers that the city would not defend the lawsuit. That could leave the suit without any entity willing to act as defendant. The State of California was originally a defendant, but was dismissed because San Francisco Sheriff Vicki Hennessy enforces state bail laws. A spokesperson for California Attorney General Kamala Harris said the AG’s office was reviewing the matter. Her office is already defending a similar lawsuit in Sacramento.

The California Bail Agents Association, an association of bail bond companies, has twice moved to intervene in the lawsuit, according to Phil Telfeyan, a spokesman for Equal Justice Under Law. Attorneys for the association filed another such motion Tuesday. A hearing is set for early December. An attorney for the California Bail Agents Association, Harmeet Dhillon of San Francisco, told the Chronicle that Herrera shouldn’t refuse to do his job.

He has support in other parts of California, however, according to the Chronicle. Hennessy and San Francisco Mayor Ed Lee both issued statements disagreeing with the use of bail schedule, though Hennessy said she’d enforce the law. State Assembly Member Rob Bonta, a Democrat from the Bay Area, said he would introduce legislation to end financial bail, which he said “discriminates against poor people for being poor.” California’s chief justice, Tani Cantil-Sakauye, created a task force in October to study ways to change bail in California.

San Francisco is one of the largest municipalities sued by Equal Justice Under Law, but far from the only one; municipalities in six other states have lost or settled similar lawsuits, forcing them to stop using bail schedules. The U.S. Department of Justice made waves when it filed a letter of interest in one of those cases, Varden v. City of Clanton, Alabama, condemning the use of financial bail.

One of the organization’s lawsuits, Walker v. City of Calhoun, Georgia, is before the 11th U.S. Circuit Court of Appeals. Both the DOJ and the ABA have filed amicus briefs in that case arguing against bail schedules.