California jails could soon stop locking up tens of thousands of people who haven’t even appeared before a judge yet simply because they’re too poor to post bail, if a class-action lawsuit filed Wednesday succeeds.
Riana Buffin, 19, was charged with grand theft on October 26. Jail officials told her she could walk free that day if she posted a $30,000 bail, but would otherwise remain behind bars until her trial was completed. Buffin earns $10.25 an hour working at the Oakland airport, according to the complaint filed by attorneys with the non-profit group Equal Justice Under Law (EJUL).
Crystal Patterson, 29, faced a $150,000 bail for her charges under the automated bail schedule the county uses. Desperate to be released because she is the sole caretaker for an elderly relative, but barely scraping by on a $12.50 hourly wage of her own, Patterson turned to the bail-bonding industry. Because she couldn’t pay the standard 10 percent fee such firms charge, she instead pulled together $1,500 from friends and then signed an agreement to repay the full $15,000 bonding charge – plus interest.
The two stories illustrate the injustice of San Francisco County’s rigid bail rules, which the county was required to formulate by an old state law mandating that county’s establish a fixed bail schedule that sets the price of pre-trial freedom for almost every criminal charge. The requirement has produced results so ugly that even the San Francisco County Sheriff is supporting the EJUL’s case and calling for an end to the bail rules.
Hours after EJUL filed suit, charges against both women were dropped.
Patterson will never get her $1,500 back, and will still have to repay tens of thousands in principal and interest to the bondsman – who would have immediately gotten the posted $150,000 back when charges were dropped, EJUL co-founder Phil Telfeyan said in an interview, or upon Patterson’s appearance in court if the district attorney pursued the case.
“The system in San Francisco effectively creates two different systems of criminal justice, one for the rich and one for the poor,” Telfeyan said. “Let’s say a Mr. Jones is arrested and put on that same $150,000 bail, but he’s wealthy. He can post the full amount, and he gets it back when he shows up for his court appearances.” That contrast in experiences between rich and poor people accused of the same crimes is about more than just individual dignity, the lawyer said. The freedom wealth buys lets a person “vigorously fight the charges, help gather witnesses and evidence, and put up a full defense at trial.”
Telfeyan’s team is asking a federal judge to treat the case as a class action on behalf of every indigent person who enters San Francisco’s jails and faces the sort of choice between staying behind bars and going deep into debt to a bondsman to obtain release. The attorneys say that roughly 1,800 people are jailed before trial under such conditions in San Francisco alone each year, based on extensive research of the problem conducted by the San Francisco Public Defender’s Office.
The bail scheduling system converts arrests and criminal allegations into a marketplace where the demand for bail bonds and the price of freedom are both controlled by the government. That market effectively privatizes what is an essentially public responsibility: the intersection of accused criminals’ due process rights and public safety concerns about how to ensure criminal defendants face the music. The profit bondmaking companies can turn off women like Patterson and Buffin lures entrepreneurs in to manage that crossroads on the state’s behalf.
That state-spawned industry is already raising the specter of lawlessness in response to the lawsuit.
“It’s getting scary out there, and they’re making it so nobody’s going to be held accountable for anything anymore,” Maggie Kreins, head of the California Bail Agents Association and owner of Maggie’s Bail Bonds in southern California, told KQED. “When these individuals don’t go to court, who’s going to go look for them?”
But anyone considered either too violent to be released or too likely to dodge a court date based on their record would not be eligible for bail anyhow. “San Francisco is literally saying to people like Ms. Buffin and Ms. Patterson, we’re happy to have you free. We’re not worried about you all. You can walk out the jail doors today—if you have money,” Telfeyan said.
San Francisco County Sheriff Ross Mirkarimi is also rejecting the industry’s concerns to support the suit. “There are no sound policy justifications for detaining arrestees based on their wealth status. Indeed, there are strong policy reasons not to do so,” the man charged with managing public safety for San Francisco County says in an affidavit submitted alongside the EJUL request for an injunction.
Mirkarimi rejects the bail-bonding industry’s argument in part because there just isn’t a problem of people skipping bail. “As much as 99 percent of folks are actually showing up to their court appearances,” Telfeyan said. The pre-trial monitoring and reminders systems the sheriff’s office uses are highly effective for people who make bail or are released on their own recognizance.
“Now that there are all these tools at the county’s disposal, there’s really no need for the bail-bonding companies,” Telfeyan said. Instead of providing a public service, they “are only there to impose an interest-based penalty on folks who are poor.”
The automated bail schedule and reliance on for-profit actors isn’t merely producing the kinds of unjust policy outcomes alleged in the EJUL complaint. It’s also costing the state money rather than saving expense: pre-trial incarceration costs ten times what the county would spend on the Sheriff’s preferred system of monitoring and informing free people ahead of their court dates, Telfeyan said.
Worse yet, research indicates that keeping people accused of low-level crimes in pre-trial detention makes them significantly more likely to break the law than those released within 24 hours. That’s true in both the immediate term and over the longer haul, according to research by the Laura and John Arnold Foundation.
Even 48 to 72 hours of pre-trial detention is associated with a 40 percent jump in the odds that a low-risk arrestee will break the law in some other way before their trial date for the initial charge. The two-year recidivism rate is 51 percent higher for low-risk arrestees held for 8 to 14 days of pre-trial detention.
This is the ninth suit EJUL has filed challenging pre-trial bail practices around the country. But this case could have a broader impact than the others, Telfeyan said, because it targets bail procedures in felony cases and because it names the state of California as a defendant in addition to the local government of San Francisco. A win in this case would strike down the state requirement behind the rules, thus allowing – but not compelling – any other county statewide to abandon its own fixed-bail system.
Telfeyan’s team estimates that San Francisco county alone holds 1,800 people per year in pre-trial detention solely because they’re unable to make bail. Based on the county’s share of the total state population, the group’s estimate suggests that something like 82,000 Californians who arresting authorities would be happy to release pre-trial instead face the choice of paying a bail bondsman or languishing in a cage until their case is resolved.
Telfeyan didn’t endorse that very loose estimate and stressed his team does not have a number of its own for the total volume of Crystal Pattersons and Riana Buffins in the state. But if anything, he said, such a population-based figure would likely understate the scope of the problem. “San Francisco actually has a pretty robust pre-trial release program,” he said, so the county “ends up releasing a more generous proportion of pre-trial arrestees than other counties we’ve looked at in California.”