SAN FRANCISCO -- In October 2015, legal action was taken against the state of California by a rights group based in Washington, D.C., claiming the current fixed bail scheduled system is unconstitutional and does not provide equal opportunities for wealthy and poor incarcerated individuals.

San Francisco City Attorney Dennis Herrera said Nov. 1 that he will not support nor defend the current bail system in place and that he also believes it is unconstitutional.

“The California Constitution and the U.S. Constitution both permit the use of bail," Herrera told the Northern California Record

In the lawsuit, the plaintiffs argue that California’s bail system is unconstitutional, because it treats poor people and rich people differently, said Danica Rodarmel with the University of California, Berkeley, School of Law. Many states, like California, have fixed bail amounts, including Oklahoma and Texas. 

“People have to stay in jail if they can’t pay the bail amount, which means that poor people sit in jail pending trial while rich people can buy their way out,” Rodarmel told the Northern California Record.  

The process of the bail system allows for unequal treatment of wealth classes in California. Additionally, it “violates the due process and equal protection clause of the U.S. Constitution,” Rodarmel said.

“Fixed bail schedules do not provide flexibility to consider factors about individual defendants who bail out when they are detained prior to appearing before a judge,” Rodarmel said. 

The argument Herrera faces is that when jails retain individuals for minor acts committed, the state's citizens pay to feed, clothe and supply the minor a bed. Also, when individuals are kept in jail and cannot supply sufficient bail payments, the process can take a negative toll on their families.

In order for California to implement a remodeled bail system, there will have to be major reform elected by the citizens, Rodarmel said. 

“Community involvement is the only way to ensure that we end up with meaningful reform and that we don’t unintentionally perpetuate or create other kinds of harm," Rodarmel said.

Other states such as New Jersey and California have moved away from the fixed bail scheduled system California currently uses and are progressing toward a bail system that has “made efforts to limit the commercial bail industry’s involvement in the process,” Rodarmel said. 

"It is important to note that these states have consulted with not only their citizens, but also bail companies and investors, as well, to decide the most effective way to go forward with this endeavor," Rodarmel said. "There are many other approaches to take in order to achieve an appropriate measure for this issue. Regardless of what shape reform takes, it is important to note that people from the communities most impacted by money bail and the commercial bail industry are consulted in the process."

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