Fight Against Money Bail in San Francisco Snagged on ‘Evidence’

OAKLAND, Calif. (CN) – At a hearing Tuesday, a federal judge lit into a lawyer challenging San Francisco’s bail scheme over evidence she said would be inadmissible in a federal court.

Phil Telfeyan with Equal Justice Under Law, arguing the case on behalf of a proposed class of arrestees who cannot afford bail but are otherwise eligible for pretrial release in San Francisco, argued other jurisdictions have effectively used other non-monetary methods to ensure arrestees appear in court.

He said in Kentucky, which has had a pretrial release program since 1976, 92 percent of defendants make all future court appearances. This drew a heated response from U.S. District Judge Yvonne Gonzalez Rogers, who wanted to know where he got that figure.

“You’re asking me to accept that as true but you have no foundation for it,” she said. “It seems to me you want to cut corners and you don’t understand the rules of evidence and what that means in a federal court. If you think that a district court can just say, ‘Hey let me pull something off the internet and view that as true,’ if it gets to the Ninth Circuit, do you think the Ninth Circuit will say that judge did his or her job? This is a fact-finding entity.”

“We’re citing scholarly articles,” Telfeyan said.

“So what? I’m just supposed to take some academic at their word? Without any examination?” Gonzalez Rogers said, her voice rising in irritation.

She said she was loathe to accept an academic study or a law review article as evidence on which to upend “the prevailing system in the United States.”

In 2015, the nonprofit legal group Equal Justice Under Law brought a federal class action against San Francisco, claiming it unconstitutionally criminalizes poverty by keeping poor arrestees in jail. Lead plaintiffs Riana Buffin and Crystal Patterson spent 29 and 48 hours in jail, respectively, because they couldn’t afford bail.

The two women were arrested in October 2015 in San Francisco, Buffin on suspicion of grand theft and Patterson on suspicion of assault. Buffin’s bond was set at $30,000, Patterson’s at $150,000.

Telfeyan and Equal Justice Under Law say this wealth-based detention scheme violate the 14th Amendment, and want an injunction prohibiting San Francisco from using a bail schedule to keep people behind bars because they cannot afford to buy their freedom.

Gonzalez Rogers said she believes strict scrutiny, the highest standard of review in constitutional matters, should apply to the case. For the city’s money bail scheme to survive, it must be justified by a compelling state interest, be narrowly tailored to meet that goal, and there must be no other less restrictive ways of achieving it.

“If strict scrutiny applies, the plaintiffs only need show a number of plausible alternatives,” Telfeyan said, noting the goal of future court appearances can be achieved through a risk assessment tool by which arrestees are screened based on a number of factors, from the serious of their crimes to their past criminal convictions. Judges can use that tool to evaluate whether a detainee should remain in jail or be released pending their future court dates, with no money changing hands.

Krista Baughman, arguing for the bail industry, said there are other alternatives.

“The effectiveness of risk assessment tools is unknown and less effective than bail,” she said.

Gonzalez Rogers seemed exasperated. She said she was “appalled” by the plaintiffs’ motion for class certification, which she said had little to do with the complaint.

“I was frankly appalled when I saw that proposed order and I questioned your competency,” she told Telfeyan. “The way you postured this class certification motion led me to think you don’t know what you’re doing.”

Telfeyan apologized, saying the same motion from 2015 had been filed because the judge had previously ruled it untimely.

Gonzalez Rogers declined to rule Tuesday, and set a tentative bench trial date for Feb. 12.

In an interview after the hearing, Telfeyan said he was looking forward to Gonzalez Rogers’ order.

“We’re going to learn a lot from her order. I’m looking forward to finding what evidence the judge needs,” he said, adding he would prefer either summary judgment in favor of the plaintiffs or clarification on what evidence she wants to see at trial.

The case comes as California is poised to likely eliminate bail through legislation, and San Francisco City Attorney Dennis Herrera has also said he will not defend the system. Chief Justice Tani Cantil-Sakauye called money bail unsafe and unfair in October, vowing to work with legislators to replace it with a reformed pre-trial scheme.

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