Federal Judge Upholds Challenge to Money Bail

(CN) – A federal judge said she could find no justification for San Francisco’s bail schedule Monday in a ruling that could affect the outcome of constitutional challenges to money bail throughout the country.

U.S. District Judge Yvonne Gonzalez Rogers said the two lead plaintiffs in the case, who languished in jail for more than 24 hours before their families could secure bail, had shown that their poverty significantly deprived them of their right to freedom.

“Given the consequences which flow from an extended duration of pre-arraignment detention, the court finds the deprivation significant. Accordingly, plaintiffs have shown that the sheriff, through use of the bail schedule, has significantly deprived plaintiffs of their fundamental right to liberty by sole reason of their indigence,” she wrote, noting that plaintiff Riana Buffin lost her job at the Oakland Airport because she had spent 46 hours in custody.

“‘Significance’ is measured by more than just a difference in hours. Plaintiff Buffin’s experience evidences the real-world consequences of such a deprivation; she lost her job. She is not alone,” Gonzalez wrote in the 41-page ruling. “The evidence reveals that individuals can also lose their housing, public benefits, and child custody, and be burdened by significant long-term debt due to a short period of detention.”

Attorney Phil Telfeyan of Equal Justice Under Law, who initially filed the lawsuit in 2015, hailed the ruling as thoughtful and thorough.

“It’s a tremendous victory. Judge Gonzalez Rogers put a lot of careful analysis in this case and she came out with a right decision. She recognizes the severity of the fundamental deprivation of liberty,” Telfeyan said by phone on Monday.

The decision hinged on one crucial component — whether the plaintiffs would be able to identify at least one plausible alternative to the bail schedule that would achieve the government’s interest in protecting public safety and ensuring future court appearances. Their proposed alternative was the pre-trial risk assessment tool mandated by Senate Bill 10, a California law signed by Governor Jerry Brown last year that effectively outlaws money bail statewide. However, a referendum seeking to overturn that law will be put to voters in November 2020.

Gonzalez nonetheless found that assessment tools, which individually assess each arrestee’s risk to public safety, qualified as a less-restrictive alternative to bail, especially considering that San Francisco has already implemented its own version of a public safety assessment.

“The bail schedule, by contrast, is arbitrary in that it sets amounts without regard to any objective measurement and thus bears no relation to the government’s interests in enhancing public safety and ensuring court appearance,” she wrote. “It merely provides a ‘Get Out of Jail’ card for anyone with sufficient means to afford it.”

Equal Justice Under Law doesn’t endorse using algorithms – which have the potential to be discriminatory – to assess whether someone is a danger to the public or likely to skip court dates, but Telfeyan said he agreed with Gonzalez’s legal analysis. “She handled the alternatives correctly. She’s not requiring that any specific alternative be put in place. She’s correct to note that there are less restrictive alternatives available,” he said.

Telfeyan said that while today’s ruling only applies in San Francisco, it could have broader implications.

“Equal Justice Under Law continues its work across the country and this case will be an important precedent nationwide,” he said. He thinks it could be particularly relevant to the Texas case O’Donnell v. Harris County, in which a district court found that Harris County’s bail system discriminates against the poor.

The Fifth Circuit largely upheld that ruling, but limited the judge’s order for Harris County to release on unsecured personal bonds all misdemeanor defendants who have not had a probable cause hearing within 24 hours of their arrest.

Attorney Harmeet Dhillon, who represents the California Bail Agents Association as interveners in the Buffin case, called the ruling disappointing, surmising that it would deprive more arrestees of liberty by removing the option of bail. “The court’s injunction will limit an existing option,” she said.  “People like the plaintiffs will end up being held longer as a result of today’s ruling as they will lose the right to get out of jail quickly.”

Dhillon noted that several appellate courts have upheld a lower standard of review for similar cases, including Walker v. City of Calhoun, which held that a 48-hour detention of indigent arrestees was presumptively constitutional.

Dhillon called the ruling’s disagreement “a departure from existing jurisprudence,” adding that she wouldn’t be surprised if the U.S. Supreme Court takes up the issue.

“Two appellate courts unanimously agree with the position we took; there’s a good chance that the Supreme Court is going to end up applying that sort of analysis,” she said.

Dhillon could not comment on whether the California Bail Agents Association will appeal.

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