In a suit that figures to have widespread impact, potentially, to the legal system, a class action lawsuit filed in federal court yesterday seeks to end the practice of money bail in San Francisco. The lawsuit, filed in the U.S. District Court for the Northern District of California, takes aim at San Francisco’s “wealth-based detention scheme.”
Equal Justice Under Law, a civil rights organization based in Washington, D.C., that fights systemic inequalities in the legal system, is suing the City and County of San Francisco and the State of California on behalf of San Francisco inmate Riana Buffin. Ms. Buffin was arrested on Monday, October 26, on allegations of grand theft of personal property and is currently detained in the county jail because she cannot afford her $30,000 bail.
“San Francisco is detaining Ms. Buffin not because she is a risk to public safety, but because she is too poor to buy her freedom,” said Phil Telfeyan, co-founder and Executive Director of Equal Justice Under Law. “San Francisco’s use of a generic bail schedule creates two criminal justice systems — one in which wealthy arrestees can purchase their freedom and another in which poor arrestees must languish in jail pending trial for even minor offenses.”
San Francisco’s fixed bail schedule, set by San Francisco Superior Court judges and ranking among the most expensive in the state, sets bail amounts based on the offense and does not take individual circumstances or public safety into account, according to the lawsuit. Approximately 50 people per day and 18,000 people per year are booked into San Francisco County Jail. About 85 percent of inmates have not yet been convicted. Because they cannot afford bail, they can remain locked up for months while awaiting trial, often losing their housing, jobs, or children.
While the suit attacks the San Francisco bail system, San Francisco is not alone. As the Sacramento Bee in an editorial asked in 2011, “Who, really, needs to be detained before trial, and who should be allowed to remain in the community while his or her case proceeds? Counties need to take a hard look at the risks arrestees pose to public safety while they await trial.”
The Bee added, “In Sacramento County, 31 percent of the pretrial population has had no previous arrests, or only one arrest. Forty-three percent have had no prior convictions. Sixty-three percent were arrested for nonviolent property, drug or alcohol crimes. Most are local people and are not a flight risk.”
The Contra Costa Times reported last year that roughly 65-70 percent of those in county jail custody are awaiting trial and that number is up to 85 percent in the Bay Area.
One of the big problems with bail, as San Francisco Public Defender Jeff Adachi told the Vanguard last November, is that it is class-based. Those who can afford to put up the bail get released from jail. The poor have to be incarcerated.
“It’s unfair because people who are released from jail are simply those who have money. You can get out on bail if you’re charged with murder if you have the money,” Jeff Adachi said. “And yet if you’re charged with criminal trespass, and you don’t have $500 to post bail, you’re going to be in jail.”
“The presumption of innocence in this country is meaningless because for most of our clients who are poor people, they are incarcerated pending their trials,” he said. “It places much more pressure on them for innocent people to plead guilty. It creates a disincentive for cases to be fully investigated and litigated.”
The lawsuit argues that appropriate conditions of release — including pretrial release services and text message or phone call reminders of court dates — can save taxpayer dollars while also increasing public safety and court appearance rates. The lawsuit also calls for appropriate alternatives to pretrial incarceration, such as electronic monitoring, intervention and rehabilitation programs, stay-away orders, and home detention.
San Francisco Deputy Public Defender Chesa Boudin, whose office will represent Ms. Buffin in her criminal case, said clients who are incarcerated are at a disadvantage in the courtroom. Pretrial detention hampers defendants’ ability to participate in their own defense, and it can even result in worse outcomes at trial. “Put simply, being unable to afford bail makes you more likely to be found guilty — even if you’re innocent,” Boudin said. “Worse still, pretrial incarceration can motivate someone to plead guilty solely to lessen their jail time.”
Since the beginning of 2015, Equal Justice Under Law has filed nine class action challenges to money bail systems in seven states. As a result, cities in Alabama, Missouri, Mississippi and Louisiana have reformed their practices to end the use of secured money bail for new arrestees.
According to Mr. Telfeyan, Equal Justice Under Law’s lawsuit in San Francisco is historic due to the support of County Sheriff Ross Mirkarimi. “Having the support of the chief law enforcement official in the county highlights that detaining arrestees based on wealth-status not only violates the Equal Protection Clause, but also is bad policy,” said Mr. Telfeyan. “Sheriff Mirkarimi’s recognition of the inequities of money bail is a testament to his office’s commitment to practices that both are fair and protect the public, and it is a model to which law enforcement agencies across the country should strive.”
In a declaration, Mr. Adachi stated, “The lawsuit alleges that the use of money bail after arrest operates to discriminate against indigent arrestees, thereby depriving them of equal protection under law.”
He continued, “I agree that the use of monetary conditions to detain pretrial defendants penalizes indigent arrestees solely based on their wealth status. The harm to indigent arrestees is not just their jailing, but also worse outcomes at trial.”
“There are no sound policy justifications for detaining arrestees based on their wealth status. Indeed, there are strong policy reasons not to do so,” he added, noting that someone is more likely to plead guilty even if they are innocent to shorten their jail time.
Mr. Adachi noted that the class action lawsuit, if successful, will have widespread benefits throughout the county. “For too long, arrestees who are indigent have been jailed for no other reason than their inability to afford bail,” Adachi said. “Now is the time for an end to money bail and for an end to the needless and unjust practice of detention based on wealth-status.”
San Francisco Sheriff Ross Mirkarimi stated, “Valuable taxpayers dollars are wasted detaining indigent arrestees. In addition to the injustice of penalizing an arrestees solely based on wealth status, the whole system wastes limited law enforcement resources.”
He argued, “The Sheriff’s Department and the judicial system have many reasonable methods of protecting the public without arbitrary detaining indigent arrestees. For example, electronic monitoring (which is already used in certain situations, particular post-conviction) can be used more widely to minimize flight risk. Pretrial services can also ensure court attendance and help minimize risks to the community.”
He added that “the use of monetary conditions to detain pretrial defendants penalizes indigent arrestees solely based on their wealth status. The notion that someone’s freedom depends on the amount of money they have is anathema to equality and justice.”
—David M. Greenwald reporting