Courtesy of James R. Touchstone, Esq.
In the March 4, 2019 case of Buffin v. City & Cnty. of S.F., the California Northern District Court granted the plaintiffs’ motion for summary judgment challenging the use of San Francisco’s Felony and Misdemeanor Bail Schedule (the “schedule” or “Bail Schedule”) as a basis to release pre-arraignment detainees where the detainees could not afford the amount set forth in the schedule.
The Court found that the evidence showed that the Sheriff’s use of the Bail Schedule significantly deprived plaintiffs of their fundamental right to liberty, and a plausible alternative existed which was at least as effective and less restrictive for achieving the government’s compelling interests in protecting public safety and assuring future court appearances.
California Penal Code section 1269b requires superior court judges to “prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions.” The section further requires judges to consider the seriousness of the offense charged. Here, the San Francisco superior court established the Bail Schedule, a table with three columns identifying an “Offense” or Penal Code section, a short “Description” thereof, and a fixed “Bail” amount. The Sheriff uses the Bail Schedule to determine an arrestee’s bail amount. Specifically, the Sheriff locates each “booking charge,” tabulates the amounts designated per charge, and releases the detainee upon payment of that value. The Sheriff applies the process mechanically, making no individualized assessment regarding public safety, flight risk, ability to pay, or strength of the evidence.
San Francisco’s Bail Schedule is among the highest in the state. The Court explained that “[n]o reason or process is provided for the basis upon which the [bail] amounts were determined. Meanwhile, those arrestees who either can afford the amount of bail identified in the Bail Schedule or can post a surety bond for the same are simply released.” The process effectively meant that a wealthy arrestee charged with a violent offense could be released from custody within a matter of hours, while an indigent arrestee could remain incarcerated for as many as five days before seeing a judicial officer or have their case discharged for “lack of evidence.”
On Monday, October 26, 2015, San Francisco police arrested plaintiff 19-year-old Riana Buffin on two charges. Pursuant to the bail schedule, her combined bail amount for the two charges was set at $30,000. Buffin could not afford the bail, which she called a “fortune.” The District Attorney’s office ultimately decided not to file formal charges, and Buffin was finally released on Wednesday night. By the time of her release on Wednesday night, she had spent approximately 46 hours in custody, and normal court operations had long since ceased. Buffin lost her job because of her detention.
On Tuesday, October 27, 2015, San Francisco police arrested plaintiff 29-year-old Crystal Patterson at 3:49 p.m. for “assault with force likely to cause great bodily injury,” Penal Code section 245(a)(1). She was booked intojail, and told that her combined bail amount for two separate assault counts under this section was set at $150,000 according to the bail schedule. Patterson told the bail agent she could not afford the $150,000 for immediate release. She was never taken to court. An uncle paid an “initial down payment” of $1,500 on a $15,000 non-refundable premium to secure a bond from a surety bail agent. Patterson was released after her uncle paid the $1,500. After her release, the District Attorney decided not to file formal charges against her and dischargedthe case.
The plaintiffs challenged the use of the schedule by defendant San Francisco Sheriff Vicki Hennessy (the “Sheriff”) to determine their release. The plaintiffs argued that plausible alternatives existed which would allow for their release and that the continued use of such a schedule violates the Due Process and Equal Protection clauses of the United States Constitution. In March 2017, at an earlier stage in the prior history of this case, the Court granted California Bail Agents Association (“CBAA”) limited intervenor status when the Sheriff refused to defend the use of the Bail Schedule. In a previous summary judgment order, the Northern District concluded that strict scrutiny review applied to the plaintiffs’ Due Process and Equal Protection claims. The Court had also certified the plaintiff class as follows:
All pre-arraignment arrestees (i) who are, or will be, in the custody of the San Francisco Sheriff; (ii) whose bail amount is determined by the Felony and Misdemeanor Bail Schedule as established by the Superior Court of California, County of San Francisco; (iii) whose terms of pretrial release have not received an individualized determination by a judicial officer; and (iv) who remain in custody for any amount of time because they cannot afford to pay their set bail amount.
In August 2018, California’s governor signed the California Money Bail Reform Act (“SB 10”) into law. Originally slated to go into effect in October 2019, SB 10 was suspended when a referendum to overturn it qualified for the November 3, 2020 ballot. As it is, SB 10 prohibits monetary conditions of release in the state, authorizing Pretrial Assessment Services to release, without court approval and prior to arraignment, low-risk and medium-risk arrestees with “the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the person’s return to court.” SB 10, sections 1320.10(b), (c). Individuals arrested for misdemeanors (with certain exceptions) must be released within 12 hours. The Legislature’s goal was to “remedy” California’s pretrial system by “reducing reliance on money bail, supporting pretrial defendants with pretrial services, focusing detention resources on those who pose a risk of danger, reducing racial disparities, and ensuring that people are not left in jail simply because they cannot afford to pay for their release.”
SB 10 also requires counties to report to the state pretrial release and detention information biannually, which includes information about the percentage of individuals released pretrial, the percentage of those who fail to appear at a required court appearance, those who commit new crimes while on pretrial release, and the rate of judicial concurrence with recommended conditions of release. SB 10, section 1320.24(b). None of these provisions exist in the current statute, Penal Code section 1269b (“Section 1269b”).
The Court considered the plaintiffs’ and defendants’ cross-motions for summary judgment, the Court explained “when parties submit cross-motions for summary judgment, each motion must be considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). If, however, the cross-motions are before the court at the same time, the court must consider the evidence proffered by both sets of motions before ruling on either one. Riverside Two, 249 F.3d at 1135-36.
The Court explained that, despite the early origins and broad recognition of the right to bail in the United States, studies of administration of bail in the twentieth century raised a number of concerns about its widespread misuse. The studies concluded that the system of money bail in the United States discriminates against indigent detainees who lack the financial resources to post bail. Though advances in twentieth-century pretrial justice occurred, the Court explained that there is a growing nationwide consensus on concerns regarding the administration of bail in the criminal justice system.
The Court explained that it previously found that whether the Sheriff’s use of the Bail Schedule violates the Due Process and Equal Protection clauses of the United States Constitution was an issue subject to strict scrutiny analysis. In its cross-motion for summary judgment, CBAA requested that the Court reconsider the standard of review, but the Court reconfirmed that strict scrutiny was required.
Strict Scrutiny Application
The Northern District first considered whether the Sheriff’s use of the Bail Schedule “significantly” deprived plaintiffs of their fundamental right to liberty due fully to their indigence. The Court explained that San Francisco arrestees who were released after posting bail were detained an average of 12.8 hours less than those who were not able to post bail.
Plaintiff Buffin not only lost time but, like other members of the plaintiff class, lost her job due to her detention. Other class detainees lost their housing, public benefits, and child custody due to their detention. Detention led some to incur significant long-term debt due to their period of detention, and others pled guilty or no contest an early stage in the proceedings in order to secure their release. The Court concluded that, given these consequences resulting from the extended duration of pre-arraignment detention, the deprivation was indeed significant. Accordingly, plaintiffs had shown that the Sheriff, through use of the Bail Schedule, had significantly deprived plaintiffs of their fundamental right to liberty by sole reason of their indigence.
Next, the Court explained that, under the strict scrutiny standard, plaintiffs must identify a plausible alternative that is less restrictive and at least as effective at serving the government’s compelling interests, here identified as protecting public safety and assuring future court appearances. The Court added that the burden is “not high, and it need not rise to the level of scientific precision.” “Less restrictive” in the strict scrutiny context means considering whether the challenged law is necessary as a means to accomplishing the end.
Here, the plaintiffs’ proposed alternative to Section 1269b was a computerized risk assessment process that was “essentially implemented” already by SB 10’s “more detailed version.” By already enacting SB 10, the government itself presented a less restrictive yet at least as effective alternative to accomplish the express goal of reasonably assuring public safety and individuals’ return to court. Unlike the current bail schedule reliance, SB 10 requires all jurisdictions to generate prior to arraignment for each arrestee “[t]he results of a risk assessment using a validated risk assessment instrument, including the risk score or risk level.” SB 10, section 1320.9(a)(1).
It also provides that individuals who are assessed as low-or medium-risk to public safety and of failure to appear in court shall be released on their own recognizance, prior to arraignment and without review by the court, “with the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the person’s return to court.” Id., Sections 1320.10(b), (c). This would allow for release when court is not in session (not necessarily true under the current bail schedule method). Also, individuals arrested for misdemeanors would generally be released within 12 hours (id. Section1320.8), i.e., roughly the average length of those posting bail for release under the current system.
The Court then assessed whether the plaintiffs’ proposed alternative was “less restrictive and at least as effective” as the Bail Schedule in serving the government’s compelling interest in enhancing public safety and ensuring future court appearance. Nor, according to CBAA’s own expert, was there any information about the effectiveness of bail schedules. Instead, such schedules were used merely for “operational efficiency,” which the Court explained did not “trump a significant deprivation of liberty.”
The Court concluded that the Bail Schedule could not be deemed “necessary.” The Court found that plaintiffs’ proposed alternative, which required an individualized inquiry into the risk an arrestee has to public safety and of failure to appear, was consistent with the government’s goals of enhancing public safety and ensuring court appearance without perpetuating the deprivation of one’s liberty.
The Court thus held that plaintiffs had made a prima facie showing that the alternative was less restrictive and at least as effective at serving the state’s compelling interests and that CBAA could not show that the alternative would be less effective at serving the government’s compelling interests. The Court thus concluded that CBAA failed to meet its burden under strict scrutiny.
Accordingly, the Northern District Court granted plaintiffs’ motion for summary judgment and denied CBAA’s cross-motion. The Court then issued an injunction enjoining the Sheriff from using the Bail Schedule as a means of releasing a detainee who cannot afford the amount.
HOW THIS AFFECTS YOUR AGENCY
As mentioned earlier, a referendum to overturn SB 10 qualified for the November 3, 2020 statewide ballot. Approval of a majority of voters would be required for SB 10 to take effect. SB 10 would otherwise require significant changes to agencies that like San Francisco rely on a bail schedule used similarly to set bail amounts. Agencies should be cognizant of the requirement of individualized assessments of pretrial arrestees, and should review their processes for the issues discussed by the Court that serve as the impetus behind the enactment of SB 10. It appears there is momentum for bail system reform as it pertains to indigent pretrial arrestees.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 2019 U.S. Dist. LEXIS 34253 (N.D. Cal. Mar. 4, 2019).