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. Over the last several years Chesa Boudin has led San Francisco’s bail reform efforts. As District Attorney, he vows never to ask for money bail that is tantamount to detention and will only ever seek detention of those defendants who present a serious risk of flight or danger to the community, and for whom there are no less restrictive alternatives
When a person is arrested and charged with a crime, an assessment is made as to whether they should be released pending their case, or whether they should be detained. The law demands that detention is only appropriate when a defendant poses a serious risk of violence or flight AND no other less restrictive alternatives are deemed adequate. If a defendant does not pose such a risk, they must be released pre-trial with whatever least-restrictive restrictions are adequate to ensure their appearance in court and public safety. These restrictions could include: daily check-ins, court-date reminders, ankle monitoring, substance abuse treatment, mental health treatment, meetings with a pre-trial officer, full time work or school, career counseling, housing access, etc.
This assessment as to whether a defendant is a risk and should be detained or whether a defendant should be released pre-trial is a critical step in the criminal justice process, because both the Constitution of the State of California and the Constitution of the United States guarantee that people are innocent until proven guilty beyond a reasonable doubt, and that we must not be denied liberty without due process of the law.
It is also critical because study after study shows that outcomes for defendants detained pre-trial – before they have been convicted of a crime - are worse than for those who are afforded their freedom while they defend against criminal charges. Pre-trial detention is also criminogenic - when we incarcerate people who are low-risk it makes it more likely they will commit a crime in the future.
Unsurprisingly pre-trial detention disproportionately effects black and brown defendants, and defendants without access to financial resources. This discriminatory application of pre-trial detention has created a system where defendants – regardless of risk – are detained based on the color of their skin or the size of their wallet. When a district attorney asks for pre-trial release with conditions that she knows a defendant cannot meet, what she is asking for is tantamount to detention regardless of risk. In other words, illegal detention.
Chesa Boudin Has Been At The Forefront of The National Movement To End Money Bail
There is a national movement to end money bail because it is applied in a way that is discriminatory, unconstitutional, and undermines public safety. Chesa Boudin has been at its forefront.
As one federal judge wrote regarding a San Francisco case that Boudin and his team litigated in 2018: “there is no rational relationship between money bail and protecting the public under California law.” Instead, in a money bail system, wealthy defendants are able to buy their freedom regardless of risk, while the poor, also regardless of risk, are pressured to waive their rights in order to secure their freedom.
Chesa Boudin is currently litigating yet another case which is pending before the Supreme Court of California. In January 2018, the First District Court of Appeal ruled that the money bail system in California violated due process and equal protection by imprisoning defendants prior to trial solely because they could not afford to pay bail. The ruling required Superior Court judges across the state to consider both a defendant’s ability to pay and non-monetary alternatives to money bail when setting an amount of money bail or setting conditions of release. It also prohibited detention that was based solely on a defendant’s inability to pay.
Chesa Boudin has also worked closely with a broad coalition across the state to push for legislation (SB10) to end money bail and to ensure that legislation lives up to its potential and promise. He has assisted the San Francisco Courts in implementing the Arnold Foundation’s Public Safety Assessment (PSA) risk assessment algorithm as a replacement to money bail and launched the public defender’s early representation unit which provides pre-charge advocacy for every person booked into county jail and given unaffordable money bail.
The Future Of Money Bail In San Francisco
In response to a different civil rights law suit that Boudin initiated in 2014, the San Francisco City Attorney, on behalf of the Sheriff, wrote: “Those who can pay are released at a time of their choosing, regardless of any threat they may pose to public safety and regardless of any flight risk. Those who cannot pay must wait. This two-tiered system of pretrial justice does not serve the interests of the government or the public, and unfairly discriminates against the poor. It transforms money bail from its limited purpose in securing the appearance of the accused at trial into an all-purpose denial of liberty for the indigent. The Sheriff is required to enforce the State’s law, and she will, unless and until its unconstitutionality is established in the courts. But she is not required to defend it, and she will not.”
Despite this concession and numerous victories in state and federal courts in the four subsequent years, the daily practice is San Francisco courtrooms is largely unchanged.
As District Attorney, Boudin promises to immediately end money bail. Here is how:
- Prohibit all DA staff from ever requesting a price tag on freedom. Currently, unaffordable bail is being used to unlawfully detain defendants who pose no serious risk of flight or violence. Chesa Boudin will never ask for money bail.
- Honor the US and California Constitutions’ prohibition on punishing a person who has yet to be convicted of a crime while also protecting public safety. Pre-trial detention is a devastating experience. County jails are often public health disaster zones: crowded, unsanitary, and without reliable access to medication or mental health care. It is also disruptive to the family members of detainees who must suffer the absence of a wage earner and family member. In San Francisco more than 65 percent of people booked into jail will be released in a week or less. Boudin will make sure those people are safe to be released, get released quickly and for free, while ensuring those that are not safe are detained, regardless of their wealth.
- Continue to fight against the for-profit bail bond industry which undermines public safety and equality in order to make a profit. The bail industry is currently trying to amend the California constitution to protect profits and undermine safety and justice. Boudin has been fighting the bail industry for years, and will make sure the industry doesn’t change our constitution.