San Francisco Faces Uncertain Bail System After Reform Win

By Emma Cueto | March 10, 2019, 8:02 PM EDT

Oakland resident Riana Buffin was never formally charged with a crime, but that didn't stop her from spending 46 hours in jail because she couldn't pay bail while suspected of grand theft, or from losing her job when she didn't show up to work.

In a suit brought by Buffin and another woman in the Bay Area, a California federal judge ruled that San Francisco's bail schedule, which lists preset bail amounts based on the crime of which a person is accused, was unconstitutional because it essentially deprived people of liberty based on a one-size-fits-all list, rather than an individualized determination.

Moreover, the judge said, less restrictive alternatives were available, including the types of risk assessment tools proposed by other reform efforts in the state.

"Plaintiffs' proposed alternative — which entails an individualized inquiry into the risk an arrestee has to public safety and of failure to appear — is consistent with the government's goals of enhancing public safety and ensuring court appearance and does not perpetuate the deprivation of one's liberty," U.S. District Judge Yvonne Gonzalez Rogers said.

The judge has not yet issued an injunction that will instruct the county sheriff how to handle people detained before arraignment yet, but attorneys say that she could issue the order as soon as a hearing scheduled for later this month.

But while Buffin's attorneys hailed the decision as a major win for low-income San Franciscans, critics argued that its impact might not be entirely positive.

Harmeet K. Dhillon, an attorney who represented the industry group California Bail Agents Association, told Law360 that depending on how the judge's next orders are structured, the ruling may actually result in more people stuck in jail.

In California, when people are arrested on felony or certain misdemeanor crimes, they are taken to jail facilities and processed. Once in front of a judge, which is supposed to happen within 48 hours, the judge can set an individual bail amount or release a person without bail. But even before this first court appearance, a person can bail out by paying an amount set by that county's bail schedule.

As advocates have noted, the bail schedule in San Francisco is above average in California in terms of the amounts it requires from accused citizens. Buffin, for example, would have had to make a down payment on a $30,000 bond to be released. As a 19-year-old making a little over $10 an hour, she couldn't pay.

However, Dhillon argued that scrapping the bail schedule wouldn't necessarily have meant Buffin could have walked free. If there was no bail schedule in place, she pointed out, Buffin still would have had to wait up to 48 hours in jail for her first court appearance, not because the amount set was too expensive, but because there was no option to pay yet at all.

It all depends on how the judge orders the county to behave going forward, Dhillon said.

"I don't want to prejudge what the injunction will look like," Dhillon said. "[We might] be back at the same place for most people."

She noted that the sheriff has resisted the idea that people who are currently detained before their arraignment should instead be released, and that such a plan would raise public safety concerns.

Dhillon, who also argued in favor of the current system in court after the county and city governments declined to defend it, added that she also agreed that the amounts on the San Francisco bail schedule could be high, but argued that this did not make them unconstitutional.

"You have to look at this under a constitutional analysis rather than bumper stickers," she said.

She also noted that many people have serious concerns about the algorithmic risk assessment tools that Buffin's attorneys proposed as an alternative to bail, which attorneys on both side of the case admit can be based on racially skewed data and thus produce poor results.

Attorneys for Buffin, however, argued that while some risk assessment tools are built on poor data, others don't have the same problem and would be a viable alternative to the current system.

"It's not all or nothing," said Phil Telfeyan, an attorney for Buffin, explaining that these tools could be used to release many people before their first court appearance without having to pay anything.

Under the system Telfeyan and his co-counsel are proposing, San Francisco would expand a current program called Project OR, or Own Recognizance, which evaluates people being detained prearraignment. The project uses risk assessment tools and in-person interviews to assess people, the attorneys explained, adding that it could prevent more people from waiting in jail for their first appearance.

Overall, the system will do a better job protecting people's rights, according to Sadik Huseny, Telfeyan's co-counsel.

"The new system we're proposing is one that doesn't allow wealth-based discrimination to affect people's fundamental right of liberty," Huseny said. "The cash bail system currently does."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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