US judge strikes down money bail for arrested defendants

An Oakland federal judge on Monday struck down San Francisco County's use of money bail for those suspected of crimes but not yet charged as a "significant deprivation of liberty."

U.S. District Judge Yvonne Gonzalez Rogers condemned the bail schedule as "arbitrary," because it "bears no relation to the government's interests in enhancing public safety and ensuring court appearance."

"It merely provides a 'get out of jail' card for anyone with sufficient means to afford it," she wrote.

A risk assessment tool to determine the likelihood of defendants committing a new crime and failing to return to court is "at least as effective and less restrictive," according to Gonzalez Rogers.

The judge took issue with what she said was unequal treatment of those with less means under the status quo at a January hearing on the plaintiffs' motion for summary judgment.

"The issue is why any person, regardless of wealth, has an advantage that the other person does not have," Gonzalez Rogers said. "Under one system, they're all treated equally and in the other, one side has an advantage."

Attorney Harmeet K. Dhillon, who represents the California Bail Agents Association argued arrestees are "not significantly deprived of a fundamental right" when they are detained slightly longer than those who post bail, especially when there is a due process-compliant "Humphrey hearing," in which the court inquires into a defendant's ability to pay and considers alternatives to pretrial detention if appropriate.

A bail schedule also promotes "operational efficiency," the Dhillon Law Group Inc. founder argued.

Gonzalez Rogers dismissed the argument because, she wrote, the "record is devoid of any evidence" concerning the matter.

Two women brought the lawsuit after they were arrested and held in jail before their arraignment because they could not pay bail. The San Francisco County district attorney's office did not file charges, and one of the plaintiffs lost her job.

Plaintiffs' attorneys argued the county's use of the bail schedule is a violation of the due process and equal protection clauses of the 14th Amendment. Buffin v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

Just a few months after SB 10, which would also phase out cash bail in favor of risk assessment tools, was signed into law, the bail industry and other opponents submitted roughly 600,000 signatures to state elections officials to challenge the bill through a voter referendum in November 2020.

Gonzalez Rogers' decision takes on new significance if the bill is repealed.

"Even if SB 10 is repealed, this will serve as a safeguard," said plaintiffs' attorney Sadik H. Huseny, a partner with Latham & Watkins LLP. "That will be on the books no matter what happens."

The state attorney general, the San Francisco city attorney and sheriff's offices refused to defend the constitutionality of the state's cash bail system, leaving the California Bail Agents Association as the sole intervenor.

Plaintiffs' attorneys sought to halt the association's involvement in the case because it allegedly "no longer has any government shoes to fill, and it is highly unusual, if not troubling, for an intervenor to act contrary to the interests of the party for which it ostensibly intervened."

Huseny said he may raise the issue again if the association appeals.

Dhillon did not immediately respond to a request for comment.

The court will delay issuing an injunction preventing the sheriff from using the bail schedule until the judge is briefed on the alternative. A hearing regarding the language of the injunction is set for March 21.