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.
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.. 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.
U.S. District Judge Yvonne 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 of Dhillon Law Group, 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.
