American Bail Coalition Takes Active Role in San Francisco And Beyond

Recently, the Associated Press (AP) released a news piece regarding a lawsuit filed several weeks ago in federal court against the State of California and the City of San Francisco.  According to the story, the claims in Buffin v. San Francisco, are challenging the “cash bail” system currently in use in California.  While this story suggests the lawsuit challenges all “cash bail” (and by extension the surety bail industry), the truth is this lawsuit only argues for the elimination of the setting of bail according to California’s bail schedules.

It is important to note that San Francisco is not the first place that activist attorneys representing plaintiffs like Buffin have made these claims, and it is not the first time that the American Bail Coalition (ABC) has been involved in trying to show the fatal flaws of these claims.  San Francisco is only the first state where state and local governments are strongly opposing the plaintiffs in defending against the claims.

ABC has worked tirelessly with defense counsel, local agents, state and national non-profit associations, law enforcement officials, prosecutors, attorneys, victim advocacy groups, and many others in the bail industry to provide support to defeat these cases.  The cases were all settled too quickly for ABC to seek to intervene and each settlement has been undertaken without any adverse effect on the American Bail System or the surety bail industry.

ABC has prepared legal briefs, drafted pleadings, and prepared policy statements regarding the true purpose of these cases.  Most recently, ABC staff and members directly assisted the California Bail Agents Association and their attorneys in their effort to intervene in the San Francisco case, and in so doing provided access to information gathered and legal analysis on the issues directly involved in these cases.

ABC has retained national federal litigation counsel.  This counsel is developing a strategy for an intervention petition on behalf of the American Bail Coalition in the San Francisco.  In addition, a long term national strategy is being developed to combat this current attempt to improperly legislate through litigation, bastardizing our American criminal justice system and abandoning the American bail system.  We have and we will continue to do everything necessary to defend the industry from these attacks.

While these lawsuits certainly threaten the American Bail System and surety bail and require a unity within the community of those who support the right to be free from custody on the American concept of bail, it is clear (from the documents filed in the lawsuits) that these claims only stand for the proposition that scheduling bail is unconstitutional.  The lawsuits will not, as the Associated Press inaccurately reported, eliminate “cash” bail.

The plaintiffs admit in a document filed January 4, 2016: “Plaintiffs are not arguing that all money bail has to be eliminated.”  Plaintiffs’ claim they are attacking bail imposed on those who “cannot afford it.” However, the activist attorneys for plaintiffs should already know if bail is set in a case, and a state judge can review the bail or set the bail considering the individual circumstances presented by the defendant, then the remedy is to permit the state judge to consider those circumstances.  They may not challenge an already working system through civil rights litigation.

Inaccurate reporting suggests that the San Francisco case and cases similar to it challenge the entire “cash bail system”, and further suggests that bail agents charge interest, and it is unfair that they get to charge a non-refundable premium for providing the service of bailing someone from jail and becoming liable for their return to court.  This is simply untrue, inaccurate and merely inflames an already complicated subject.

Bail transactions are not subject to interest charges.  In addition, nearly all service fees, court and related costs, or attorney fees, other than those related to bail, related to arrest or necessary to defend against a criminal prosecution are non-refundable.  To suggest that bail premiums are somehow unique or remarkable because those premiums are non-refundable ignores the fact that there are for-profit criminal lawyers and other financial other costs that are not refundable when the State loses a case.

The American Bail System works for the vast majority of people who are processed through it in any given year.  It is true that our criminal justice system can work better.  Reforms can and should vary state by state. Discarding the American bail system is not reform and will only move us backward in our efforts to make the criminal justice system work more efficiently for those accused of crimes who have not seen their day in court and work better the general public that it’s designed to protect.