The money bail system is morally, fiscally, and intellectually bankrupt

The justice system should not discriminate based on wealth

By Chesa Boudin

Money bail is the system where innocent people can be kept in jail because they’re poor, while wealthy people who are guilty and dangerous go free. It’s time to end it.

Four years ago, the system was challenged in a groundbreaking lawsuit named after two women, Riana Buffin and Crystal Patterson, who were unconstitutionally jailed in San Francisco and never even charged with a crime. On September 3, a federal judge finally issued an injunction that puts an end to this shameful, dangerous practice.Assuming that the injunction takes effect—which turns on the approval of the San Francisco Board of Supervisors—it will prohibit San Francisco from using money bail after an arrest and prior to an initial court appearance.

This case is personal for me. I represented Ms. Buffin and Ms. Patterson after they were arrested and helped them initiate the successful constitutional challenge that followed. Neither of them had ever been arrested before I met them in the county jail, and neither has been arrested since.

When wealth determines criminal justice outcomes, it undermines the integrity of every conviction in the system and unconstitutionally discriminates against the poor. Income inequality infects every aspect of life. But when it comes to liberty, money is all too often the only thing that matters. Even though countless courts have ruled that we cannot incarcerate people simply because they are poor and we cannot punish people who have yet to be convicted, the money bail system does both.

Our money bail system is morally, fiscally, and intellectually bankrupt. It makes us less safe by allowing the wealthy to buy their way out of jail regardless of how dangerous they are. Some wealthy people commit new crimes while out on bail but in San Francisco, the law does not require forfeiture of bail money for commission of a new crime, only for failure to appear. Money bail discriminates, in violation of equal protection and due process, against the poor, even those who pose little or no public safety risk or risk of flight. In San Francisco alone, it siphons $10-15 million a year, mostly from women of color, to a for profit industry that provides no public service. Failure to appear rates are virtually identical for people who buy their way out on bail and for those who are released with nothing more than court-ordered text message reminders for future court dates.

In 2015, I initiated the Buffin/Patterson lawsuit. In 2016, I initiated an impact litigation campaign focused on making sure that judges followed the Constitution when they set bail—most weren’t. Over the last four years I’ve built broad coalitions with law firms, non-profits and other government agencies to push for a fairer, safer system that will replace money bail.

Though we have more work to do, my impact litigation has dramatically changed the way the public and the courts approach the issue of money bail. The federal suit won a rare concession from the Sheriff and the City Attorney that the status quo was indefensible and unconstitutional. The litigation I spearheaded resulted in a slew victories from both state and federal courts including a significant published opinion from the federal Ninth Circuit Court of Appeals and a major victory from the California Court of Appeal which is now pending before the California Supreme Court. The Attorney General has agreed with all of the key arguments we made at the outset of the case, and so has the San Francisco District Attorney.

This isn’t an issue I have come to embrace recently now that it is popular. I have campaigned against money bail from the beginning, when those in power scoffed that what we were seeking was impossible. For years now I’ve been pushing San Francisco, and California’s bail reform efforts with the vision of ensuring that our communities are safe and that we respect the Constitution when determining who is jailed pretrial. Now that effort is finally paying off.

As San Francisco’s next District Attorney, I vow to continue the fight by never asking for money bail that is tantamount to detention. Where a defendant presents an unmitigable risk of flight or danger to the community, I will ask the courts to detain them, regardless of wealth.

Chesa Boudin is a deputy public defender and founding Chair of the Board of Civil Rights Corps. He is a candidate for San Francisco District Attorney in the November 2019 election.

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