Lawsuit Seeks to End Money Bail System

Bail

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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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32 thoughts on “Lawsuit Seeks to End Money Bail System”

  1. zaqzaq

    David,

    What is the solution for defendants who do not show up in court for their cases?  How do you incentivise a defendant’s participation in their case for those that do not show up in court?  What is the cost to the state (courts, DA, Public Defender, police, … .) when a defendant decides not to attend their court hearings?  I do not believe that the cases can proceed without the defendant?  What are the options to bail?  What system is being used in Yolo county as an alternative to bail?  I have been told that there is something in Yolo county were a defendant is released from jail other than posting bail.  How does that program or programs work?  What is Riana Buffin’s criminal history?  If she has previous criminal cases has she previously failed to attend her court cases?  How is eligibility for pretrial services determined in San Francisco?  What percentage of felony or misdemeanor  defendants are out of jail due to posting bail and what percentage are out of jail on other programs in Yolo County?  There is much lacking in this article.  You have previously posted articles on this topic and I have yet seen you address these issues.

    1. David Greenwald Post author

      “What is the solution for defendants who do not show up in court for their cases? ”

      You put them into custody at that point. I believe the objection is to putting people into custody based on an inability to pay the bail, rather than a security or flight risk. Obviously if the defendant shows they cannot handle their OR release, then that changes the parameters.

      ” There is much lacking in this article. ”

      There is a lawsuit and a press release. Your questions are fine, but that’s part of what a trial situation would work out.

      1. zaqzaq

        I did a little research online concerning the own recognizance (OR) release.  A judge looks at the defendant’s ties to the community, employment, past criminal record if any, past failures to appear in court, danger to the community based on the crime the person was arrested for (murder = dangerous, theft not dangerous) or any other fact that would relate to the likely hood that the defendant will appear in court or that they will commit additional crimes.  The judge can also impose conditions on a defendant to insure that they appear in court or to prevent future crime.  I imagine that with today’s technology tools that could be used are GPS devices, devices that detect alcohol or drugs, drug or alcohol testing, restrictions on conduct like not calling or visiting a victim or location or other verifiable things that would insure that the defendant goes to court and does not commit more crimes.  What could a judge require of a person who has one or more drunk driving arrests?  What conditions could be imposed to insure they appeared in court and did not drive drunk again?  This process looks reasonable and I am not sure why it was not included in the article.

        In my online research I learned that Yolo county has a grant funded OR program managed by the probation department.  See http://www.yolocounty.org/law-justice/probation/pretrial-release-program

        So my question for David is what percentage of defendants are released on OR or bail?  Why the push to eliminate the bail system?  My guess is that very few people are released on bail while the vast majority are on OR release.

        Now back to little Miss Riana Buffin.  Itg appears that the DA did not “pursue charges” and she was released after two days.  There is another person named in the lawsuit and she chose to post bail (not wait the two days) and charges were not pursued.  See this link for the story http://www.sfgate.com/news/article/Group-files-suit-to-scrap-S-F-s-unfair-6599294.php

        So it appears that a person arrested and in jail has a decision to make.  Pay the bail or wait tow days for the OR hearing.  I do not see a problem with this process.  There should be some process for a determination on when a person is released from jail.  It now appears that David’s buddies in SF want to eliminate the bail option or get the out of jail before the OR release determination option.  I do not see a problem with the bail option to insure a person goes to court if a judge determines that they are not a good risk in the OR process.  It is my understanding that the bail bondsman hires a bounty hunter to go get the person who took off.  It is more cost effective for the state to have a private individual going and bringing criminals back to court.  Again, what is the problem?

        The key seems to be establishing a good OR program that can allow defendants to be released back into the community while protecting the citizens of the community from more crime while insuring that the defendants go to court.  It looks like there is one in Yolo county.  Why don’t you do an article on the Yolo county OR program.  Interview whomever runs the probation department from more information on that program instead of publishing these misleading propaganda pieces from San Francisco.  It looks like you are getting lazy.

  2. hpierce

    Interesting topic… what would help is a bit of insight into what a “bail bond” costs… I seem to recall that it is ~ 5-10% of the bond.  If someone ‘buys’ a “bail bond”, and makes all required appearances, what does it cost?

    1. hpierce

      Interesting topic… what would help is a bit of insight into what a “bail bond” costs… I seem to recall that it is ~ 5-10% of the bond.  If someone ‘buys’ a “bail bond”, and makes all required appearances, what does it cost?

      Read Zaq2 after I posted… this article, may not be ready for “prime-time”.

      1. zaqzaq

        hpierce,

        I agree this article is not ready for “prime-time”.  Instead it is a shallow attack on the existing bail system which is only part of a larger system where suspects/defendants appear in court.  It appears that David publishes articles with no real understanding concerning how the system works here in Yolo county or in the state.  It would be more informative to describe what systems are in use other than bail in Yolo county for starters.  That would even start with when is a person taken to jail when arrested.  My understanding is that most sign a “ticket” promising to appear in court for misdemeanors.  Felonies I believe are different.

        I just love the quotes by San Francisco Sheriff Ross Mirkarimi who retained his office after being convicted of domestic violence.  He has no credibility.  It is a statement on the standards of the citizens of San Francisco that this guy is still in office.  I mean Ray Rice cannot get a job in the NFL due to his domestic violence case that did not even result in a conviction and the Mirkarimi still has his job.  What is wrong with this picture.  The officer in the recent school incident lost his job and Mirkarimi still has his.  Something is wrong with our society.  Or did Mirkarimi get away with it due to not being caught on video.

        1. hpierce

          Notice the use of the term “may”….

          “is that necessary?”  No, just me being clumsy in saying that perhaps if the article had been fleshed out further, folk who have never had direct contact with the system would understand it better, and could form reasonable opinions…

  3. Tia Will

    zaqzaq

    I think that these are very good questions. I would add a few more.

    What are the hidden costs to not only the accused, but also to their family in terms of direct financial cost, child care costs, future earning capacity, family cohesiveness ?

    What are the relative costs to the taxpayers of incarceration while awaiting trial vs costs if the accused does not show up for trial ?

    1. zaqzaq

      Tia,

      Good questions.  How about what are the costs to victims who show up in court for their cases and the defendant’s do not show up?  Not just the victims but also to their family in terms of direct financial cost, child care costs, future earning capacity and family cohesiveness.

      1. David Greenwald Post author

        But again, why presume the individual is not going to show up? And how does having money to pay for bail relate to the ability of people to show up? People out on bail fail to show all the time – some for legitimate reasons, others for illegitimate reasons. If they fail to show, they can get their bail revoked. So why couldn’t they be released on OR or supervised OR under the same conditions? The Sheriff had some interesting alternative suggestions as well.

      2. Tia Will

        zaqzaq

        I agree that both sides need to be fully considered in cost/benefit analysis. And also agree with David’s question. If they are presumed innocent until proven guilty, why start with the premise that they will not show up until that has also been demonstrated ?

        1. Davis Progressive

          but the other point is that the bail system means that people get released from custody based on ability to pay rather than assessment of risk of flight, public safety or non-attendance.  the recourse when a person is on bail and either commits a new crime, flees, or fails to appear is that they could (they don’t always) put them back in custody.  so why couldn’t you do that without bail?

  4. Frankly

    I think that the strong egalitarian twitch in some people is actually a health issues that they should get treatment for.  Unfortunately this malady tends to be ignored and some of the people suffering with it are somehow able to get out of bed in the morning and put on their pants (without crumbling to the ground in consideration of all the other people that lack beds and pants) and some of them make it to positions of influence and activism where their sickness spreads great harm to others.

        1. Davis Progressive

          i think the more powerful argument is this:

          85% of in-custody people are pre-trial.  that means they have been convicted of no crime.  some of them will never be convicted of a crime.  some of them will be convicted of crimes for which they will have to serve no time.  and others will be convicted of crimes for which they will have to serve time.

          if we freed up that space and only held the people who were actual threats in custody, we would relieve much of the overcrowding problem and need for more space.

          finally you have the fairness issue – release on bail is based on ability to pay rather than danger/ security.  so there is a fairness issue.  you could end up releasing a dangerous criminal who can afford bail.

    1. Tia Will

      Frankly

      I think that the strong egalitarian twitch in some people is actually a health issues that they should get treatment for. 

      Definition of egalitarian

      of, relating to, or believing in the principle that all people are equal and deserve equal rights and opportunities.”

      I do not believe that “egalitarian” beliefs are a sign of illness. I do not believe that egalitarianism is a dirty word, or a sign of illness, or a sign of being brain washed. I believe that it is very close in philosophy and intent to the foundational ideas of our country. I am just sad that these ideas have been hijacked by those who want to believe that any success that they have achieved in life is theirs and their’s alone. That they received no help from anyone else in our society and that they do not owe anything at all back to the society that supported their success. A very sad warping of what our country was intended to be and could be in my opinion.

       

      1. Don Shor

        All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

        .
        — Article 1, The Universal Declaration of Human Rights.

        1. Matt Williams

          Thanks for posting that Don. It is very interesting to me to read that Declaration, and then apply what it stands for to an individual’s right to die.

          1. Matt Williams

            Fair enough pierce. It was a question that connected to the point being made, but the point being made may well have been a digression in its own right.

  5. Anon

    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.

    The problem with San Francisco’s fixed bail schedule is that it does not take into account individual circumstances nor public safety.  A person is innocent until proven guilty, yet the bail bond system literally makes a person guilty until proven innocent.  I understand why the need for some sort of system to ensure the person charged will show up to court.  But I do not see any justification for imposing bail on persons who offer no threat to public safety or who clearly are not a flight risk because of their individual circumstances.  As per usual, blanket rules with no flexibility are shown to be extremely unfair.

    Examples that will boggle your mind:

    http://www.wsbtv.com/news/news/local/jailed-jaywalking-pedestrian-crime-lands-some-behi/nhygy/

    http://www.huffingtonpost.com/radley-balko/raquel-nelson-jail-for-jaywalking_b_905925.html

    http://www.csmonitor.com/USA/Justice/2012/1216/Jailed-without-conviction-Behind-bars-for-lack-of-money

    http://www.dailygazette.com/news/2015/may/09/low-bail-doesnt-mean-you-get-out/?dgzrg

    http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a-pint-of-blood-or-jail-time.html?smid=fb-nytimes&smtyp=cur&_r=0

    From: http://www.cbsnews.com/news/how-jails-are-warehousing-those-too-poor-to-make-bail/

    “Jails have lost sight of their intended purposes,” said Laurie Garduque, director of the MacArthur Foundation’s Justice Reform program. “It’s not supposed to be a place where people languish because they can’t make low-level bail or can’t pay their traffic tickets.”

  6. Scheney

    Definitely this system needs to be reformed.

    I had a student who was arrested for a felony assault charge after a fight broke out at a bar in downtown Davis in July 2014.  He was a full time student in his Senior year, celebrating his birthday with several friends, a father of twin girls under the age of one, and working part time in addition to attending school to support his family.  He was stopped in front of Woodstock’s Pizza, arrested and taken to Yolo County jail and held there, despite repeatedly telling the officer that he was not involved in any fight that night and had witnesses to that affect – people who were with him the whole time and/or bartenders and staff at the places that they visited.

    At the initial hearing, his request to be released was denied and bail set at around $20K (I think he was charged with assault with a deadly weapon!).  He was missing his classes at UC Davis and his job was at risk, so out of desperation he took the family’s August rent money and posted bail.

    At the preliminary hearing in September 2014, the arresting police officer testified that he did not know why he arrested the student, other than he was black, one of the people involved in the fight was black and the student was the first black man he found in the area.   The student was found to be factually innocent by Judge Fall and it was ordered that the entire arrest record to be expunged.  However, he lost his rent money to the bail bondsman, which caused the young family, living precariously month to month, immense hardship.

    I think that this is just wrong.  I believe that this kind of thing happens all the time.

     

    1. Anon

      It does happen all the time (see the links I gave above), and it is ridiculous.  As I said, it is setting the justice system on its head, assuming the person is guilty until they prove their innocence.

  7. hpierce

    The two ends of the bell curve are having a field day.  One example used, the guy who happened to be black, arrested when there was a fight where witnesses said a black man was involved, without witness ID of that man, gets arrested and can’t go OR.  Very probably “wrong”.  One end of the bell curve has no problem with that.  The OTHER end of the bell curve would use that as a blanket example of “bad system”, and would be fine with Topete going OR.  Both ends of the curve are flaming idiots, in my opinion.

    The system needs reforming, not elimination.

    1. Napoleon Pig IV

      “The system needs reforming, not elimination.”

      I agree. However, history demonstrates that reforms only occur after moderate voices are finally awakened by extremist stridency shaking the sheep awake and motivating them to correct definable, ongoing injustice prior to going back to contented grazing. We pigs, on the other hand, were we only fully empowered, would never allow things to get into such a state of disarray and blatant unfairness. Oink!

      1. David Greenwald Post author

        I would say at this point, I’m probably in favor of ending the bail system. I think we have other tools to ensure compliance including ankle-monitoring, supervised OR, and other alternative forms of custody. If someone represents a danger to the public or a flight risk, I don’t see how bail protects us more than no bail.

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