Contesting bail to take on racial disparities in San Francisco jails

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Prison inmates stand in line as they prepare to dance in opposition of violence against women as they participate in a One Billion Rising event at the San Francisco County Jail #5 on Valentine's Day in San Bruno, California February 14, 2013. The event, with participants from 250 countries performing a choreographed dance routine on a day associated with romantic love, aims to raise awareness about violence against women in which one in three women across the globe will be raped or beaten in their lifetime. REUTERS/Stephen Lam (UNITED STATES - Tags: SOCIETY) - RTR3DT6Q

Prison inmates stand in San Bruno, California on Feb. 14, 2013. In San Francisco, only about six percent of the population is black, according to the U.S. Census, yet an analysis commissioned by Adachi found nearly half of the city’s inmates are black. The public defender’s office is trying to take on this disparity in part by contesting bail in most cases. Photo by Stephen Lam/Reuters

In San Francisco, black inmates are less likely than their white counterparts to get out of jail ahead of trial despite being more frequently eligible for release, according to a report commissioned by the city’s public defender’s office.

In part to take on this disparity, San Francisco’s public defender Jeff Adachi has assembled what he calls the Bail Unit – comprised of two lawyers, two paralegals and a handful of interns – that aims to free defendants from jail ahead of trial.

Since September, the team has contested bail in more than 220 cases. About half of the petitions were denied, but in 70 cases bail was either reduced or eliminated. The others were either dismissed entirely or were not heard because of other reasons, such as the client getting a private attorney.

“This is often the most important decision that can be made in the case,” Adachi said. “If the client is not released, the chances of them pleading guilty, the chances of them losing their housing and their job and everything else are much higher.”

In San Francisco, only about six percent of the population is black, according to the U.S. Census, yet an analysis commissioned by Adachi found nearly half of the city’s inmates are black. Nationally, the Federal Bureau of Prisons reports that 37.6 percent of its inmates are black while the U.S. Census reports that black people encompass about 13.2 percent of the national population. 

In a photo provided by the San Francisco Public Defender's office, two paralegals in the newly established Bail Unit are working to contest the bail of nearly every client. Photo by the San Francisco Public Defender's office

In a photo provided by the San Francisco Public Defender’s office, two paralegals in the newly established Bail Unit are working to contest the bail of nearly all of the public defender’s clients. Photo by the San Francisco Public Defender’s office

The 2015 report, conducted by the W. Haywood Burns Institute for For Youth Justice, Fairness & Equity, also found that while 46 percent of black inmates and 35 percent of white inmates booked in San Francisco were eligible for pretrial release — of those eligible — 54 percent of white inmates were actually released while only 48 percent of black inmates were released.

“Part of what we’re trying to do is get the court to acknowledge that there is an implicit bias,” Adachi said.

In Adachi’s view, many defendants behind bars may not pose a public safety or flight risk, but are awaiting trial in jail because they cannot afford to post bail, the monetary deposit levied to ensure a defendant will be present at trial. In San Francisco, bail is set by a judge during a quick hearing within 72 hours of the arrest and it is based on a predetermined fee schedule that is weighted by the severity of the charges.

Bail fees in general are intended to incentivize a defendant to return to court when needed, preserving public safety. Under California law, every defendant in the state has the right to a hearing to reevaluate his or her initial bail. But public defense lawyers rarely have enough time to do the vigorous work of collecting evidence that might merit an inmate’s release. That’s where Adachi’s team comes in.

Since September, almost all of the public defender’s cases have been sent to the Bail Unit for investigation.

District Attorney George Gascón has also been in favor of restructuring the city’s bail system, but is engaged in a different approach.

In May, San Francisco will start using an automated survey called the Public Safety Assessment. It uses nine factors that predict on a scale of one to six whether the defendant will flee or offend before the trial. The results will be given to the judge for consideration.

Gascón’s spokesperson Alex Bastian agreed that there are many problems with the current bail system but said that when considering reform, “risk is the most important component.”

In the meantime, the city is also awaiting the outcome of a federal lawsuit claiming that its monetary bail system favors wealthy people and is unconstitutional.

“I would like to see the entire bail system thrown out and replaced with an evidence based system,” Adachi said. “For a person to be out during a trial is huge because it means that your client is going to be able to assist you.”

One of those clients is Kanisha, a 22-year-old San Francisco native who found herself in trouble with the law this month. Kanisha, who asked her last name be withheld, was engaged in a fight with an ex-girlfriend, when she grabbed a steak knife, according to her attorney, Demarris Evans. During the altercation, a counselor from her home for at-risk youths walked in and called the police. Evans claims Kanisha was protecting herself and that no one was cut in the incident.

Kanisha was arrested and charged with three felonies — assault with a deadly weapon, domestic abuse and threatening to inflict injury. She was also charged with two misdemeanors — brandishing a weapon and vandalism, for throwing the woman’s phone. On her April 13 hearing, the judge set her bail at $110,000.

“It was totally too much,” she said recalling her arraignment. “I was like, ‘I’m not going to be able to afford it so I’m going to be sitting in jail’.”

At this point, members of Adachi’s Bail Unit began to work on Kanisha’s case. Through a series of interviews, the unit learned more about Kanisha, including the close relationship she has with her mother as well as the fact that Kanisha also has an ongoing medical condition often called “Valley Fever,” which requires routine medical attention.

The Bail Unit put these findings and others into a 34-page motion for Evans, who used it at the bail evaluation hearing on Tuesday. Evans made the argument that Kanisha is firmly rooted in San Francisco, does not pose a safety or flight risk and said her health could be at risk if Kanisha awaited her case’s verdict in jail.

Under the Eighth Amendment, bail is excessive if it is set higher than a reasonable amount to ensure the government’s goal, which is to make sure Kanisha stands trial, Evans argued.

After the arguments were heard from both sides, Kanisha became the 35th person the unit helped obtain release as part of Adachi’s new focus on contesting bail. The judge said Kanisha could leave under the condition she remains under house arrest. Her preliminary hearing is scheduled for Tuesday.

Evans said the District Attorney’s office has a plea bargain in the works which would allow Kanisha to spend just 30 days in jail if she agrees to plead guilty. But now that she is out of jail, she is statistically much less likely to return, said Evans.

“Without the Bail Unit I just found in my own practice I never had the time to do the level of investigation they do,” Evans said. “I think it’s made a huge difference.”

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