Is the cash bail system rigged against the poor? Reform movement swells.

Officials in San Francisco have backed a lawsuit against their own city that claims its cash bail system is discriminatory. As the bail reform movement grows, advocates are seeking to eradicate the monetary system entirely. 

Paul Elias/AP
San Francisco City Attorney Dennis Herrera, (r.), calls for the abolition of cash bail for poor defendants during a news conference Tuesday, in San Francisco.

Officials in San Francisco have voiced support for a lawsuit against the city, joining the viewpoint of defendants who say they were held unfairly on bail they could not pay after committing minor crimes.

That support brings the city closer to joining a growing number of municipalities nationwide who are rethinking cash bail systems some say disproportionately punish low-income and minority offenders accused of nonviolent crimes. San Francisco's city attorney and sheriff both withdrew their opposition to the lawsuit within the last week, taking issue with an arbitrary system that keeps poor defendants behind bars while allowing those with funds to leave cells between the dates of their arrest and court appearances.

City Attorney Dennis Herrera said cash bail requirements create "a two-tiered system: one for those with money and another for those without," and could violate the US Constitution. On Tuesday, Sheriff Vicki Hennessy acknowledged that she will have to continue to enforce the state law, but that "she is not required to defend it, and she will not."

That lawsuit is just one of nearly a dozen filed in eight states since the beginning of 2015 by the nonprofit Equal Justice Under Law based in Washington, D.C. While the nation’s bail system saw slight improvements after activists in the 1960s and 1980s decried tenants that created hurdles for some defendants, a modern reform could eradicate the monetary system driving bail, with some experts arguing that certain requirements violate the equal protection clause of the Constitution.

"Politically, we’re right in the middle of the tipping point of this issue of whether we should have monetary conditions of bail at all," Jeffrey Clayton, the policy director of the American Bail Coalition, tells The Christian Science Monitor. "It’s picked up steam in the last couple of years. Activists right now will tell you it’s the third generation of bail reform."

As The Christian Science Monitor reported in a 2012 cover story, the inability to pay bail has served to jail low-income defendants before they’re deemed guilty. Perchelle Richardson, an 18-year-old from New Orleans, spent more than 50 days in jail on $200 bail after stealing an iPhone out of an unlocked car in her neighborhood.

She wasn’t convicted of any crime.

"I thought they had forgot about me," she said of the days she spent behind bars. "I didn't talk to my mama at all."

But some things have changed since 2012, and the movement for bail reform has continued to grow. As a result of similar suits, some cities in Alabama, Kansas, Missouri, Mississippi, and Louisiana have slashed cash bail programs for small crimes. Advocates of reform argue that courts should decide whether or not a person is a danger or flight risk when holding them without a guilty conviction. Still, many systems currently assign a dollar amount to the release of a nonviolent offender.

While San Francisco’s support for the suit will neither bring an end to it or the statewide bail laws, it’s another step in the right direction for advocates of cash bail reform. For defendants picked up on misdemeanor and nonviolent charges, the feat of scraping together funds from around $100 to a few thousand dollars can prove impossible. That blow can leave them behind bars for days or even years while awaiting a trial, leading already disadvantaged defendants to miss school, work, or caring for their children.

The US bail system draws from a Medieval English system, and has been exercised here since colonial days. The Eighth Amendment established a provision against levying "excessive bail" on defendants, as the Founding Fathers took issue with the British system. Today, that term remains an ambiguous one: What’s pocket change for one defendant constituting a mountain of expenses for another.

Earlier this month, Maryland Attorney General Brian Frosh told  lawmakers that the state's current bail system would likely not stand a constitutional test.

"You can't imprison someone for poverty," he told The Baltimore Sun last month. "For one guy, $1,000 bail is no big deal. For somebody else, they might not have 100 bucks, much less $1,000."

The San Francisco suit represents two low-income women who were arrested and held on large bails but did not face charges. One of them saw a $30,000 bail bill for allegedly stealing merchandise from a department store.

"It's an amazing step forward in the litigation," Phil Telfeyan, the executive director of Equal Protection Under the Law, the organization bringing the suit against San Francisco, tells the Monitor of the recent support from officials. "Really a lot of attention is being paid to this nationally. They say as go California, as goes the nation."

Mr. Telfeyan’s organization has seen success in smaller communities where cash bail involving misdemeanors is no longer on the books. In some of these areas, including Washington, D.C., the number of repeat offenders has declined while rates of court appearances have risen. That evidence, he says, combats pro-bail arguments that claim the system prevents petty crime.

The system's other advocate is the bail bond industry itself, which has tried to intervene in the San Francisco suit's proceedings.

"They’ve argued that this is a threat to the industry and that the bail industry provides a valuable money service," he says. "The bail industry should not be permitted to intervene in this suit because what's at stake here are questions of the US Constitution."

As activism continues to rise and officials take a social justice view of the suits, it’s possible that more lawsuits against cities, towns, and counties will arise. While variations in criminal justice systems across states and municipalities could complicate reform, a US Supreme Court ruling could provide a national remedy to the situation, experts say.

Many nonviolent defendants have awaited their day in court from behind bars throughout US history, but the national attitude toward such measures has changed, likely as other aspects of modern life have gained speed. And a third generation of reformers isn't waiting as complacently when it comes to court proceedings.

"Waiting 48 hours for something to happen, people want it to happen now," American Bail Coalition's Clayton says. "We got to speed the whole process up. We’ve got to get this resolved quicker."

This report contains material from the Associated Press.

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