By Alex Emslie
A federal class-action lawsuit filed Wednesday alleges San Francisco’s bail system is unconstitutional.
The Washington, D.C.-based civil rights organization bringing the lawsuit is hopeful that it could not only topple the “money bail” system in San Francisco, but also across the state.
“State law actually requires City and County of San Francisco to use the generic bail schedule,” said Phil Telfeyan, head of Equal Justice Under Law. “Our lawsuit is focused on San Francisco, but the impact could be broader.”
The suit (read below) was initially brought on behalf of two women arrested in San Francisco this week, but Telfeyan is asking the court to certify a class action on behalf of “all arrestees unable to pay for their release pursuant to Defendants’ fixed bail schedule who are or who will become in the custody of the City and County of San Francisco.”
Prosecutors discharged the cases against both named plaintiffs — Riana Buffin and Crystal Patterson — meaning they were both released and aren’t currently facing charges, said Telfeyan and the San Francisco Public Defender’s Office.
Buffin was arrested Monday under suspicion of grand theft. She stayed in jail for two days until her case was discharged. Patterson was arrested Tuesday under suspicion of assault with force causing great bodily injury. Her case was also discharged — a matter of hours after she paid a bail agent $1,500, or 1 percent of her $150,000 bail.
Because she made that deal, she owes the bail agent a full 10 percent of the bond, or $15,000.
“Had she been able to wait another six hours or 12 hours in jail,” Deputy Public Defender Chesa Boudin said, “she wouldn’t have had to go into debt. The problem that we see in Ms. Patterson’s case and in so many of my clients’ cases is that people are faced with this coercive choice: Go into tremendous amounts of debt, plead guilty to a crime you may not have committed or wait in jail and lose everything that’s dear and meaningful in your life.”
A district attorney’s spokesman said prosecutors are awaiting further investigation into both cases in order to pursue charges.
The president of the California Bail Agents Association called the lawsuit “misleading.”
“We’ve already seen in California the crime rates have gone up,” said Maggie Kreins, who is proprietor of Maggie’s Bail Bonds in Long Beach in addition to heading the association. “It’s getting scary out there, and they’re making it so nobody’s going to be held accountable for anything anymore.”
Kreins said bail agents have a proven record of “bringing people back to court, and bringing justice to victims.”
“When these individuals don’t go to court, who’s going to go look for them?” she said. “The taxpayers are going to have to pay two or three times to arrest the same person.”
But in San Francisco, there’s widespread agreement among law enforcement leaders for doing away with the “money bail” system.
Sheriff Ross Mirkarimi filed a declaration in support of the lawsuit and joined Telfeyan and Boudin in announcing it. He said between 75 and 85 percent of San Francisco’s jail population is pretrial at any given time. About one-third are there because they can’t afford $5,000 bail.
Mirkarimi said if people are not a safety or flight risk but are nonetheless taken from their families and their jobs, “this furthers the destruction and ruination of people and families in San Francisco.”
Former Chief Deputy Sheriff Vicki Hennessy — who is challenging Mirkarimi for the top job — said in an email to KQED that “the current system is inherently unfair.”
District Attorney George Gascón said he’s been working for years to replace the monetary bail, “not only in San Francisco but more broadly, hopefully around the state.”
“Money bail doesn’t necessarily deal with risk,” he said. “You can have people that are very risky but are financially capable of posting bail, and they’re going to get released. And you’ve got people on the other end that may not be a risk, but they may not have the monetary ability to post bail, and they remain in custody for days, weeks and sometimes longer.”
Gascón said he’s been working with the Laura and John Arnold Foundation to develop a predictive tool that could inform judges about the likelihood any given arrestee would reoffend, hurt someone or fail to show up for his or her court date. He hopes to introduce the system into San Francisco courts by early next year. He said he wasn’t in support of ditching “money bail” without a comprehensive system to replace it.
“Just simply taking money without a validated risk assessment tool would be a horrible mistake,” he said.
This report was updated Oct. 30 to include information from a district attorney’s spokesman on charges faced by the two named plaintiffs.