A group of people in San Francisco, California have filed a class action suit against the city of San Francisco arguing that the cash bail system is unconstitutional. The controversy surrounding the cash bail bond system has been a topic of discussion for many years. For a wealthy person, paying a high bail amount to be released from jail is not a problem. On the other hand, for most people who cannot afford to post bail that person may have to remain in custody during the entire time the case is pending. If the person is found not guilty or the case is dismissed there is no remedy to the accused for the time spent in jail. The suit is being represented by a group of lawyers in California from the Equal Justice Under Law and they contend that this system is unconstitutional and unfair to people with moderate to low income because it allows a person to be imprisoned due to their inability to pay the bail. Currently, the plaintiffs of the law suit have asked for cash bail to be suspended in the city of San Francisco pending the result of the lawsuit.
Bail is cash or property with significant value that a person gives to the court in order to ensure that they will appear in court on their case. Under the present bail system in California, when a person is arrested and taken to jail that person has two choices to obtain release from jail:
1. Pay the entire amount of the bail to the court. If bail was $100,000 the person arrested or someone on his behalf would be required to post $100,000 with the court, and this can only be done during regular court business hours. At the end of the case, however; the entire amount minus an administrative fee, is returned to the person who posted the bail. This option is very rarely used.
2. Pay a bail bonds company to post a bail bond with the court. The bail bond can be posted with the court at any time of the day or night, and once posted the arrested person is released within a few hours. The bail bonds company typically charges 10%, if the bail is set at $100,000, the person arrested or someone on his behalf would owe the bail bonds company $10,000. Bail bonds companies typically charge 8% for members of unions and for a person who has or soon will retain a private attorney rather than use a public defender.
There are other potentially negative consequences that occur when a person cannot bail out of jail due to the high cost of bail. For example, a person agrees to plead to a lesser charge to resolve their case faster and now that person will have the lasting criminal record or a person loses their job because they missed a few days of work. Releasing people that are charged with non-violent crimes while they await charges will free up space in the county jails and save counties money because there are other ways to ensure that a person will appear on their court dates other than high cash bail amounts, such as ankle monitoring or house arrest. The current California bail system considers flight risk and danger to the community, but it doesn’t consider income level, nor does it consider many of the factors that are favorable to low income people that the federal system considers in determining whether someone should be in or out of custody while the case is pending. In the near future we will feature an article about the Federal Pre-Trial proceedings.