Sunday Commentary: Jenkins’ Bail Policy Reignites Debate Over Pretrial Detention

By David M. Greenwald
Executive Editor

San Francisco, CA – This week, San Francisco DA Brooke Jenkins attempted to seize a mantle of reform when she issued her position on cash bail.  But the policy was immediately opposed by Public Defender Mano Raju.

The DA is attempting here a more moderate course than she has with her push against drug offenses, arguing, “As District Attorney, I am committed to ensuring public safety, holding those who commit crimes accountable and promoting smart criminal justice reform.”

She announced a new “pre-trial release and detention” policy Wednesday, including a promise to require cash bail only in “limited” misdemeanor cases.

“Cash bail unfairly penalizes those with less financial means and disproportionately affects defendants of color,” said DA Jenkins, adding, “Protecting victims and ensuring public safety are my top priorities. We will not shy away from holding offenders accountable, but we will not perpetuate further injustice and inequities.”

She would add that her office would “evaluate every pre-trial release decision on an individualized basis considering victim safety, the protection of the public, the seriousness of the offense charged, any previous criminal record of the defendant, and the probability of the defendant’s appearance in court.  Public safety and the safety of the victim shall be the primary considerations.”

She later clarified that that the DA’s office would not seek “cash bail in criminal cases, except in certain misdemeanor cases where the law provides a court with no other choice to protect public safety.”

That’s a bit confusing.  Clearly there are felony cases—not addressed in this statement—where she will seek cash bail.  Moreover, if a case is a misdemeanor case, how is public safety ever really at stake?  In most misdemeanor cases, the person could plead to the sheet and be released before the case is ever processed.

As the San Francisco Chronicle this week noted, “Jenkins has sought to walk a middle line in the city’s debate over criminal justice. She has painted herself as tougher on violent crime and repeat offenders than Boudin, while pledging to keep popular criminal justice reforms.”

Meanwhile Public Defender Mano Raju was quick to pounce, noting that Jenkins’ office has already expanded “the use of money bail to detain people accused of misdemeanors.”

As he noted, “[t]his is not about furthering public safety” but rather, “we’re talking about the District Attorney’s Office intentionally setting money bail to lock a poor person in jail where a wealthy person could simply pay the money and be released.”

Critics of bail noted that the policy is discriminatory against the poor and also people of color.

Raju pointed out that “jailing a community member destabilizes that person’s life and makes it more likely that they will be charged with another crime later. They may lose their home, their job, their kids; they endure trauma in the jail, and they are stigmatized.”

Meanwhile, Jenkins has argued that the new policy would be limited and that she wants to eliminate it.

Raju responds, “DA Jenkins’s characterization of this new policy as limited is disingenuous as the stated policy is both broad and vague. Already we have a number of misdemeanor attorneys who each have a handful of cases where the prosecutor has sought pre-trial detention.”

Most concerning, he argued, “DA Jenkins’s policy will increase the number of people caged prior to trial.”

Jenkins disputes the claim that the jail population will rise dramatically during her tenure.  But how could it not with this new policy?  The majority of people in the jail are awaiting trial—that means they are there pre-trial and any change to pre-trial detention would increase the jail population, already strained by the slow processing of cases that opponents argued were violating the rights of those detained to get a speedy trial.

Beyond the constitutional rights is the fact that, as Raju put it, “Pre-trial detention is a coercive tactic used to pressure people who cannot afford to pay bail to take a plea deal for a crime they did not commit. Increasing pre-trial detention also will exacerbate the backlog of cases where the accused waits in jail in violation of their speedy trial rights.”

He added, “And it will make even worse the human rights crisis happening within our jails—while hundreds of people are waiting days, weeks, or months without sunlight or fresh air; little or no programming; some subjected to conditions of solitary confinement.”

One of the big problems with using a public safety rationale for bail is that it conflicts with the Humphrey decision.  The Humphrey decision requires that bail be set based on someone’s ability to pay—it is a violation of someone’s constitutional rights to attempt to set bail high enough so that one must remain under pretrial detention simply because of the inability to pay.

Of course ultimately, using that rationale, bail should simply be used to ensure that people will show up at their next hearing.  The safest and surest way to do that is to release those, who are not a threat to society, on OR while having a hearing to determine who represents a threat to society—anyone who represents a threat to society should not be released on any amount of bail.  There is no protection that a $1 million bail provides anything other than setting the bail so high that few can afford it—in which case, that person remains a threat even if they can raise the amount needed to make bail.

Ultimately, Raju argued, “Nationally and throughout California, we are moving away from punishing people for being poor and toward ending the use of money bail.”

In the sense that Jenkins’ policy marked a step back, he argued, “Let’s not regress on the progress we have made as a city and county that values equality and fairness.”

This discussion points to the need to move away from bail altogether and toward a system where pre-trial detention is based on some sort of actual risk to the public rather than ability to pay.

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