DOJ Opens Racial Discrimination Investigation into San Francisco’s Bail System in the Wake of Two Successful Settlements Against Other Counties
As the practice of demanding money from presumably innocent individuals in exchange for release from jail comes increasingly under scrutiny, the Department of Justice has taken an aggressive approach to one of the many problems plaguing the American money bail system — racial bias.
In response to complaints filed by Equal Justice Under Law against numerous counties across the nation, the Justice Department is now scrutinizing jurisdictions that disproportionately deny pretrial release to people of color, or more commonly, set bail at substantially higher amounts for people of color than for white defendants accused of the same or similar offenses.
Virtually every money bail system in the United States utilizes some level of judicial discretion in pretrial release decisions. Judges decide whether to release arrested individuals by personal recognizance agreement, monetary demand, or not at all — and when money is demanded, they decide how much to charge an individual in exchange for their freedom. Often a pretrial release decision comes down to a judge looking at a defendant in their courtroom and personally sizing up their likelihood of appearance at trial and any perceived “danger” they pose. Judges are not immune from implicit bias, and when a pretrial system does not protect against it, there are devastating consequences for defendants not armed with one of the most precious currencies in our criminal system: white privilege. Jurisdictions that rely on subjective pretrial release decisions by judges (or pretrial release algorithms that do not protect against racial discrimination) experience alarming racial disparities in their pretrial jail populations, a trend that has caught the attention of the Justice Department. DOJ’s latest target of investigation for racial discrimination in money bail systems: San Francisco.
In San Francisco, where judges are free to adjust bail amounts or waive them altogether, Black defendants are 9 times more likely than White defendants to be held on bail rather than released.
Despite comprising only 5.8% of San Francisco’s overall population, Black defendants make up 38% of those forced to pay their way out of jail and are incarcerated at an astounding rate 18 times higher than White defendants.
On August 15, 2018, the United States Department of Justice Office for Civil Rights opened an official investigation into San Francisco County’s money bail system to address allegations of racial discrimination. In San Francisco, where judges are free to adjust bail amounts or waive them altogether, Black defendants are 9 times more likely than White defendants to be held on bail rather than released. Despite comprising only 5.8% of San Francisco’s overall population, Black defendants make up 38% of those forced to pay their way out of jail and are incarcerated at an astounding rate 18 times higher than White defendants. Most individuals incarcerated in San Francisco are there as a direct result of money bail demands that are impossible to pay — 80% of the County’s racially skewed jail population is unsentenced and awaiting trial. The Justice Department investigation into San Francisco’s pretrial system — in which Black defendants are 9 times more likely to be held on bail than White defendants — will determine whether the County is in violation of federal anti-discrimination laws, including Title IV of the Civil Rights Act and the Omnibus Crime Control and Safe Streets Act, and whether direct action must be taken against the County.
The Justice Department’s scrutiny of San Francisco comes on the heels of two similar investigations in Alabama and Tennessee, both of which resulted in significant overhauls of bail systems accused of racial discrimination. On April 6, 2018, the Justice Department entered into its first-ever money bail Resolution Agreement with Jefferson County, Alabama. The Agreement not only ensured that the County would adopt a racially neutral risk assessment tool to insulate release decisions from racial bias, but also solidified the County’s establishment of a Pretrial Services Agency devoted to providing racially neutral pretrial release guidance and expanded pretrial supervision. The Agreement provides for the Justice Department to retain federal oversight of Jefferson County’s reforms over the next three years.
More recently, on July 30, 2018, the Justice Department closed its two-year investigation into the Twentieth Judicial District of Tennessee — which includes Nashville and Davidson County — regarding similar allegations of race discrimination in the jurisdiction’s money bail system. The Twentieth Judicial District of Tennessee consequently adopted an objective pretrial risk assessment tool developed specifically for the jurisdiction, with the DOJ retaining federal oversight to evaluate and take any additional action necessary to ensure that the Tenth District complies with federal civil rights laws in its pretrial bail system.
More information on the Justice Department’s resolutions against Jefferson County can be found here and the Twentieth District of Tennessee can be found here, respectively. Equal Justice Under Law's complaint against San Francisco's practices can be found here, and a similar complaint against bail practices in Sacramento can be found here.