A federal judge ruled this week against a class action lawsuit to overturn San Francisco’s bail bond system because –typical of bail systems throughout the country – it keeps people awaiting trial in jail simply because they do not have money.

While federal Judge Yvonne Gonzalez Rogers said the lawsuit’s concerns about the inequities of the bail bond system might have merit, decisions on bail are made by Superior Court judges, who are state officials. And states generally can’t be sued without the state consenting, which California has not granted in this case.

Judge Gonzalez, speaking at the court hearing Tuesday in Oakland, there is “no preliminary injunction this court can order. I understand the big picture, you may have something here, but you have not articulated it… There needs to be a legal avenue to get there.”

She gave the plaintiffs a month to submit another written motion.

The lawsuit is centered on Riana Buffin, 19, and Crystal Patterson, 29. Both were arrested in San Francisco for felony charges in October and were told by officials they could leave jail if they could post bail.

Buffin worked at the Oakland International Airport, supporting her family with her income. Because she was not able to afford 10 percent of $30,000, he stayed in jail and lost her job.

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Patterson’s bond was set at $150,000. She went to a bail bond company, and with help from friends was able to gather $1,500 upfront and agreed to later pay $15,000 in full with interest.

Both cases were not pursued by the District Attorney, yet Patterson is still liable for $15,000 to the bail bond company. Had Patterson been able to afford the entire $150,000 upfront, she would have received her money back after all court appearances.

The lawsuit was filed by the organization Equal Justice Under the Law, which has also filed eight other cases like this throughout the US.

“We’re asking for an injunction against San Francisco for using cash bail,” said Phil Telfeyan, founder of the organization.

Cities in Louisiana, Mississippi, Alabama, Missouri, have reformed their bail laws due the lawsuits. The U.S. District Court for the Southern District of Mississippi has held the use of money bail violates the Equal Protection Clause.

“All of the nine lawsuits we’ve filed dealing with this bail issue are based on the Equal Protection Clause in the 14th Amendment. So it’s front and center in all of these lawsuits,” said Telfeyan.

The Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Telfeyan argues that holding people who cannot pay bail is unconstitutional, “San Francisco has a wealth based detention system. All arrestees are free to leave the jail as long as they can pay for it. It’s sort of pay for freedom scheme that obviously benefits the wealthy.”

If someone is charged with a federal crime, a federal judge will look at flight risk, and potential threat to the community to determine whether someone can be released. But on the state level, the decision is solely based on whether or not someone can afford bail, said Telfeyan.

Ross Mirkarimi, former Sheriff of San Francisco, endorsed the lawsuit. In an affidavit, he said, “I agree that the use of monetary conditions to detain pretrial defendants penalizes indigent arrestees solely based on their wealth status. The notion that someone’s freedom depends on the amount of money they have is anathema to equality and justice.”

According to Telfeyan, Mirkarimi estimates that it costs around $60,000 a year to incarcerate someone, while pretrial supervision only costs as little as two to three thousand dollars per year.

“Pretrial service agencies are able to get anywhere from 90 percent to virtually 100 percent of people to court by things like text messages, or a phone call. And these statistics are from people who never post bail,” said Telfeyan.

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