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Judge Advances Money Bail Fight in San Francisco

In a split ruling Tuesday, a federal judge denied summary judgment to both California bail agents and a proposed class of San Francisco arrestees challenging money bail as unconstitutional.

OAKLAND, Calif. (CN) – In a split ruling Tuesday, a federal judge denied summary judgment to both California bail agents and a proposed class of San Francisco arrestees challenging money bail as unconstitutional.

U.S. District Judge Yvonne Gonzalez Rogers said she could not rule that San Francisco County Sheriff Vicki Hennessy and her office violated detainees' fundamental right to liberty by holding them because they could not afford bail.

“Given that even those who pay the set bail amount are detained for some measure of time, the court cannot find that any amount of detention per se is unconstitutional. Plaintiffs’ motion thus fails,” Gonzalez Rogers wrote.

She also found the plaintiffs hadn’t made a plausible showing of some kind of less restrictive alternative to money bail, saying, “The current record is insufficient at this point.”

In an emailed statement, the California Bail Agents Association said it "appreciates the portions of the order which find that plaintiffs have failed to show either that application of the bail schedule to them resulted in any significant infringement on their rights, or that plausible alternatives exist to San Francisco’s comprehensive detention and release system. The court places the burden of proving these two critical elements of their case, squarely on plaintiffs. We look forward to a trial on the merits of this important case, as we believe California’s bail law clearly meets constitutional muster.”

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. Charges against both women were later dropped.

When someone is arrested in San Francisco, the sheriff’s department determines the bail amount by referencing a bail schedule set by the superior court. Eligible arrestees can be released on bail, or they can apply for pre-arraignment release on lower bail or their own recognizance. In 2016, the OR project, which acts under the auspices of the sheriff’s department, began using a risk assessment tool on each eligible arrestee for judges to consider at arraignment, but there is no guaranteed time when the OR workup will be completed. In Patterson’s case, she had already posted bail. Buffon’s OR workup wasn’t completed until after she was released.

At a December hearing in Oakland, Gonzalez Rogers said she thought the case must be reviewed with the highest level of scrutiny for the county’s money bail scheme to survive. Therefore, 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.

The California Bail Agents Association countered that there is no fundamental right to pre-arraignment release, and that the county’s bail policy is constitutional under the less rigorous rational basis standard.

But Gonzalez Rogers said she was persuaded by several cases presented by Equal Justice Under Law that involve the unconstitutional treatment of indigents in the criminal justice system, including Bearden v. Georgia, a 1983 case where the Supreme Court ruled that Georgia resident Danny Bearden had been unconstitutionally imprisoned because he couldn’t pay $750 in fines and restitution after a robbery conviction.

“While the court disagrees that these cases establish an unambiguous constitutional right not to be detained based on indigence as plaintiffs apparently suggest, the cases appear to require the court to consider the instant challenge with heightened review,” Gonzalez Rogers said.

Phil Telfeyan, the director of Equal Justice Under Law and the lead attorney in the case, told Courthouse News in an email that he’s confident the case will end money bail in California.

"Judge Yvonne Gonzalez Rogers said that she will apply strict scrutiny to determine the constitutionality of money bail in California. We are confident that this case will help to bring down the discriminatory practice of money bail in the state,” he said. “The importance of a federal judge weighing in on this national issue cannot be overstated.”

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Categories / Courts, Criminal, Government, Regional

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