By Kamala Kelkar
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.
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.”
So Adachi’s office was providing ineffective assistance to his clients on the bail/own recognizance because they did not take the time to present all the relevant information to the judge until he created this bail unit. I think the emphasis should be on the risk factors surrounding own recognizance release and not on the bail. The court should have some process so that an assessment can be done at the arraignment. Bail only really becomes an issue if the own recognizance evaluation pegs the defendant as a risk to flee or commit new offenses.
David you like to cover the Adachi SF bail issue but you have never done an article on how it works here in Yolo County. Do you just take Adachi press releases and turn them into articles?
It doesn’t seem like you understand the bail issue or why it is problematic. Bail basically allows people with the means to obtain bail to be out of custody in advance of their trial. That gives them a tremendous advantage in a lot of respects. Is there a difference in the safety risk for those who are out on bail versus those who are left in custody? No. The only difference is money.
The bail system doesn’t work any differently in Yolo than SF. The majority of the people in county-lock up are there on pretrial custody matters rather than having been convicted of a crime. A percentage of those people are going to be acquitted, a percentage of those people will be sentenced to probation and not serve additional time in custody. The fact of pretrial custody makes those people more likely to plead even in weak cases or when innocent. It’s a huge problem and increasingly research shows bail is not necessary – we can do just as much with supervised OR that we can with bail.
Pugalist,
It does not appear that you understand the bail issue. I suspect that if either you or David looked into the practices in Yolo county you would find that the vast majority of individuals charged with felonies are released on their own recognizance, sometimes supervised by probation. The probation department uses an assessment tool that looks at things such as likelihood to re-offend if released, danger to public safety, ties to the community, previous criminal history and previous failures to appear in court and provides this information to the judge who then makes the decision. Bail would be used by individuals whose assessments do not support release or who decide not to wait for this process. I went to the arraignment court once with my teenager to observe how the process worked as part of a civics lesson. It was also amazing how many people just do not show up in court for their cases. The concept behind bail is to insure that the individual comes to court which based on my observations last summer appears to be a real problem.
It now looks like Adachi is taking credit for doing something that he should have been doing all along. I also wonder if I went to his homepage and looked at his press releases, he is a politician after all, there would be one upon which this story is based.
The majority of those in custody in most counties are there on pretrial custody rather than post-trial sentencing. The number is not a small number the last I checked. Although AB 209 may have shifted that somewhat. It’s been awhile since I’ve worked in Yolo, but I don’t agree that the majority of felons are released on OR in this county.
I’m told that OR in Yolo County is quite rare. Almost everyone gets bail, few can afford to pay it and thus stay in custody. No bail are reserved for murder cases.
Well David my “sources” tell me that the majority of pre-trial defendants released from jail are released on OR as the vast majority cannot afford bail and the jail can only hold a finite number of inmates. I believe our county’s probation department manages a vibrant OR program that uses risk assessment tools to determine the suitability of OR for each defendant. The bail issue in our county is a red herring. You could always interview the chief probation officer on the OR program. I suspect he would be happy to describe the progressive OR program that his office manages.
“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.
Yes, Mr. Adachi, how do you account for the implicit anti-white bias here? How is it that only 35% of white inmates are eligible for pre-trial release, whereas 46% of black inmates are eligible?
0.35 x 54% = 18.9% of white inmates released
0.46 x 48% = 22.1% of black inmates released
Mr. Adachi, how do you account for the statistic that a black inmate is 17% (22.1/18.9 = 1.17) more likely to be released than a white inmate?