San Francisco Moves Forward with New System to Replace Pre-Arraignment Cash Bail
Board of Supervisors Budget Committee approves $2.2 million to replace pre-arraignment cash bail system with an expedited assessment of a person’s public safety and court appearance risks in order to quickly determine if a person should or should not be released while awaiting arraignment
San Francisco, CA — Mayor London N. Breed, along with Sheriff Vicki Hennessy, City Attorney Dennis Herrera, and Interim District Attorney Suzy Loftus, today announced that starting early next year San Francisco will no longer have a pre-arraignment cash bail system. As part of a recent court settlement, San Francisco, in collaboration with community and criminal justice partners, will implement an expedited system to assess and make recommendations to the Superior Court regarding a person’s public safety risk. The new system will facilitate release determinations within 18 hours of a person’s arrest.
This expansion of San Francisco’s existing pretrial diversion program will eliminate the Superior Court’s pre-arraignment bail schedule. A faster system of review upholds public safety while protecting arrested persons’ constitutional rights. On October 22nd, Mayor Breed introduced a supplemental budget appropriation at the Board of Supervisors to ensure that City departments will have the necessary resources and staffing to implement this new system. The Board of Supervisors Budget and Finance Committee today approved the $2.2 million budget appropriation. The budget appropriation will go before the full Board of Supervisors on Tuesday, November 12th.
“Everyone should be treated equally under the law—not based on their ability to afford bail,” said Mayor Breed. “Every hour or day that someone is in jail waiting to go before a judge can have a significant negative impact on their life. Not being able to afford bail can mean lost wages and the risk of unemployment, and can pose major difficulties for childcare and even child custody. Our hope is that with this new, expedited system and by funding the San Francisco Pretrial Diversion Project appropriately, we can make our system more just and fair.”
In 2015, two plaintiffs brought a lawsuit against the San Francisco Sheriff claiming that the pre-arraignment bail schedule required by state law deprives defendants of their constitutional right to freedom before appearing in court if they are unable to afford bail. The lawsuit, Buffin v. City and County of San Francisco, argued that cash bail without judicial review limited personal liberty primarily based on their ability to pay, and kept poor people detained in prison for a longer amount of time than people who could afford to post bail. In 2016, Sheriff Hennessy and City Attorney Herrera agreed that cash bail was unfair and took the groundbreaking step of declining to defend the constitutionality of the pre-arraignment cash bail system.
In March 2019, a U.S. District Judge found that the bail schedule perpetuates inequity between people who can afford to pay bail and those who cannot. Sheriff Hennessy, the City Attorney’s Office, the federal magistrate, and the plaintiffs forged a settlement agreement to cease San Francisco’s use of the bail schedule, and developed a proposal to replace it with a more expedient pre-trial assessment program. This change to the bail system is specifically for pre-arraignment bail, meaning before a person goes before a judge. There is still a bail system in place for post-arraignment.
Under the new system, the San Francisco will expedite pre-arraignment release decisions. These decisions are informed by a risk assessment tool, called a Public Safety Assessment (PSA), which evaluates an arrestee’s risk factors. The tool was first implemented in San Francisco in 2016 and measures risk factors like whether the current offense is violent, whether the person has prior violent convictions, and whether the person has failed to appear at a pretrial hearing. The PSA in an objective, research-based tool designed to reduce bias in the release determination process.
The Pretrial Diversion Project must convey its release recommendation and other available information to the court within eight hours of booking, beginning at the time the person’s identity is confirmed in the jail. If the Court does not make a release determination within 18 hours of booking, then the recommendation of the Public Safety Assessment takes effect, requiring the Sheriff’s Department to release or detain the defendant as indicated. Law enforcement may request a 12-hour extension if there are public safety concerns with releasing the individual. People arrested on suspicion of a serious or violent felony will not be entitled to pre-arraignment release without a court decision.
On October 22nd, Mayor Breed introduced a supplemental budget appropriation at the Board of Supervisors to fund the implementation period for the new system of release determinations, and the Budget Committee voted today to approve $2.2 million in funding. If approved by the full Board of Supervisors, the funding will allow the San Francisco Police Department, Sheriff’s Department, the San Francisco Pretrial Diversion Project, and the District Attorney’s Office to hire additional staff and fund additional staff time and technology upgrades to implement the new program. The Mayor’s Office will work with the City Controller and departments to evaluate the implementation of the program and inform the next budget cycle.
“We worked tirelessly with the plaintiffs and federal court to devise a system that protects the rights of arrested individuals, ensures an expedited review of each case, and protects public safety,” said Sheriff Hennessy. “I am pleased that Mayor Breed is moving forward with the next phase to fund this reform.”
“One system of justice for the rich and another for everyone else isn’t justice at all,” said City Attorney Dennis Herrera. “We refused to defend an unconstitutional bail system that allowed the wealthy to pay their way out of jail, even if they posed a danger to the public. This new system takes money out of the equation. Justice is better served when decisions are based on the facts, not on the size of someone’s bank account.”
“Release decisions should be based on the public safety risk posed and not by how much money someone has in their bank account,” said Interim District Attorney Suzy Loftus. “Money bail does not make us safer and moving away from it is simply the right thing to do.”
“A fundamental presumption of our criminal justice system is that individuals are innocent until proven guilty. For over four decades, SF Pretrial has protected that right through pretrial diversion and release in collaboration with the Courts and our community and criminal justice partners,” said David Mauroff, CEO of the San Francisco Pretrial Diversion Project. “It has been proven that time in jail results in an increased likelihood to commit a crime and hardship, which disproportionately impacts innocent people of color. Public safety is a priority, and a 96% rate of people not picking up a new case while under our supervision is the perfect complement to a speedy and equitable release.”