Revisiting Buffin v. San Francisco: What Our Work Tells About Plaintiffs, Bail, and Movement Lawyering
This piece was originally written in December 2025 for the Law Reform & Impact Litigation Seminar taught by Professor Chinh Le at the University of Virginia School of Law. The story has been adapted for publication on The Justice Report.
IN October 2015, Equal Justice Under Law’s Executive Director, Phil Telfeyan, boarded a flight from Washington, D.C. to San Francisco. His goal was to find plaintiffs willing to challenge San Francisco’s bail schedule for felonies. Since January 2015, Equal Justice Under Law had filed five lawsuits against bail schedules for misdemeanors in Alabama, Missouri, and Louisiana. Seeing success, Phil decided to take a first shot at challenging felony bail schedules in his home state of California.
Phil visited the San Francisco County Jail for over two weeks. Entering the jail, he conducted “cold visits” of inmates who had been arrested but had not yet seen a judge—the period known as pre-arraignment detention. Inside the jailhouse, Phil flipped through the thick book of recent jail bookings to find names of people who might have a case against their detention, then asked the jail guard to meet with them. Some of the individuals were confused, and others did not open up to him. Eventually, he met Rianna Buffin and Crystal Patterson.
RIANNA Buffin was nineteen years old when she met Phil. She lived with her mother and three younger brothers; all except one of her brothers had severe disabilities. Her mother’s only source of income was Social Security Disability Insurance, so Rianna worked at the Oakland Airport for $10.25 per hour to help take care of her brothers. On October 26, 2015, Rianna was arrested for grand theft and conspiracy. Her bail was set at $30,000. However, after being jailed for 46 hours, she was released, presumably for a lack of evidence. By that time, Rianna had lost her job.
Crystal Patterson was twenty-nine years old when she met Phil. Like Rianna, she was a family caretaker, serving as the primary caregiver for her grandmother because her mother was homeless. On October 27, 2015, Crystal was arrested for assault likely to cause bodily injury. Her bail was set at $150,000. Unlike Rianna, Crystal worked with a bail agent to gain quicker release. Crystal’s agent required a $15,000 non-refundable premium, of which $13,500 was financed at the maximum interest rate allowed by law. However, only hours after she was released on bail, the prosecutor’s office dropped charges against her. Crystal was deemed innocent but left with thousands in interest-accruing debt.
There’s not much an individual plaintiff stands to gain from challenging bail schedules. These lawsuits come at a difficult time in a person’s life, and plaintiffs are unlikely to receive monetary awards because of government immunity. But our plaintiffs believe that the justice system should be better for others moving forward. They have a pioneer mindset. Rianna and Crystal stepped up to be pioneers in the movement to reform the cash bail system.
BAIL has a complicated history in America. While bail was originally used in medieval England to free untried prisoners, its primary purpose in the U.S. has been to ensure defendants appear at court hearings. A secondary purpose later emerged in the 1970s, when “the use of bail was expanded to address public safety concerns.” Bail companies have justified the expansion of bail under these two purposes and the Eighth Amendment, which protects against excessive bail but does not mandate bail. The bail industry has ballooned into a multi-billion dollar industry where private bail companies secured $15.9 billion in bonds and collected $1.3 billion in premiums in 2017.
Bail is problematic because it disproportionately jails poor people rather than dangerous and guilty people. From 2011 to 2015, more than 459,000 people of over 1,450,000 people arrested for a felony in California were jailed but never found guilty of a crime. Jail time has profound negative effects, which are often more severe for indigent people. Individuals like Rianna can be forced to lose jobs and to leave family members who need care. Additionally, there are strong incentives to plead guilty to shorten jail time, potentially leading to more wrongful convictions. Third, detention makes it more difficult to communicate with a lawyer and prepare one’s defense. Rianna, Crystal, and Phil set out to address these harms and injustice against people experiencing poverty.
AFTER the complaint was filed, then-San Francisco Sheriff Ross Mirkarimi voiced his support for the lawsuit. He ardently advocated for electronic monitoring as a viable alternative to bail that could save taxpayers 90% of jail housing costs. Deputy Public Defender Chesa Boudin also chimed in, telling the media how bail risks the health, housing, employment, and family needs of indigent people. Even a bail bondswoman across from the county jail said that she was happy to hear that change was brewing, even though the lawsuit threatened her job.
Notable public officials joined the choir. The California Chief Justice, Tani Cantil-Sakauye, publicly criticized the bail system, calling for a task force to study alternative methods through the courts. State representative Rob Bonta announced that he would introduce legislation to end “this unjust aspect of [California’s] criminal justice system.” And the late Mayor Ed Lee shared that he was pursuing solutions with local criminal justice leaders to strike the right balance between reform and public safety.
A year after litigation began, the newly elected sheriff, Vicki Hennessy, became the named defendant in the litigation. However, she and San Francisco City Attorney Dennis Herrera made it clear that they would not defend the lawsuit. In the government attorney’s opinion, the bail schedule was unconstitutional. Herrera wrote in the answer to the complaint, “Pretrial liberty is a fundamental interest of all people accused of a crime . . . [but the wealth-based] two-tiered system of pretrial justice does not serve the interests of the government or the public, and unfairly discriminates against the poor.” While Sheriff Henessey promised to continue enforcing state law as required, she asserted that she was not required to, and would not, defend the law in court. So, who would defend the lawsuit?
THE California Bail Agents Association, or CBAA, has advocated for the continued use of bail since 1979. The CBAA lobbies state policymakers, hosts an annual convention, and offers continuing education for its members. On its website, the association argues that reforming the bail system will cost taxpayers hundreds of millions of dollars. The group also justifies its mission under the Eighth Amendment, finding that the amendment provides a constitutional mandate for the bail system. The CBAA advocates for the bail system and preserves its industry.
CBAA operates in an almost risk-free profit industry—the surety bail industry. To post a surety bond, bail agents will give the court a sort of “I owe you,” promising to pay the full bail amount if a defendant doesn’t appear in court. Meanwhile, bail agents collect a 10% non-refundable premium of the bail amount from the defendant. If the defendant appears in court, bail agents profit on the 10% premium. If the defendant doesn’t appear in court, bail agents demand the full bail amount, with interest. Bail agents lose only if defendants default on their debts. In San Francisco, over 99% of people who posted bail obtained a surety bond through a bail agent. In other words, business is booming.
Bail bond companies have been criticized for “coercing vulnerable defendants and cosigners into predatory contracts.” While the wealthy can post bail by placing a lien on their home—a lien that disappears after attending their court hearing—the indigent are often left without a choice other than to sign deals with bail agents to avoid jail time, even when they are innocent. “[A] review of bail bond contracts in California found that many impose extra fees on top of the premium, including late fees . . . .” Additionally, commercial bonds may crowd out alternative forms of release. The American Civil Liberties Union (ACLU) and the Justice Policy Institute reported that “lobbying by the private bail bond industry may have played a role in the failure of [state] legislation that would have funded alternative pretrial services.”
Harmeet Dhillon, the CBAA’s attorney at the time and now Assistant Attorney General for the Civil Rights Division of the Department of Justice, filed the CBAA’s intervention in the lawsuit and criticized the City Attorney and Sheriff for not defending the law. “Whether a law is fair or unfair is really not for Dennis Herrera, or Vicki Hennessy, or really for a federal judge to say,” Dhillon said, “but is a question for the Legislature.” The court granted CBAA’s intervention to defend the lawsuit.
TRIAL was set for September 2018. However, nine days after pretrial statements, California Senate Bill 10 (S.B. 10) was signed into law, making California the first state to abolish cash bail and creating a system that gives judges more discretion on pretrial release. While the law was initially applauded by criminal justice reformers, the ACLU, Human Rights Watch, Civil Rights Corps, and California Attorneys for Criminal Justice opposed the bill alongside bail industry advocates. These groups feared that the new risk assessment algorithm would lead to more unjust incarceration because the subjective criteria judges would use could disproportionately affect racial minorities. In response, the public put the law to a referendum in 2020, and the judge in this case vacated the trial, giving both parties the rare opportunity to refile motions for summary judgment.
On March 4, 2019, the Court granted the plaintiffs’ motion for summary judgment. The plaintiffs won on the merits, demonstrating that pretrial detention concerned a fundamental right that was violated by the bail schedules. While the litigation would not officially end for three and a half more years as the state appealed its liability for attorney’s fees, there were no other appeals on the merits. To prevent the CBAA from appealing, Phil had negotiated a settlement agreement with the Sheriff for the proper injunction. So, after 413 case documents, and more than 8,000 hours litigating by the plaintiffs alone, a pizza party was due.
And the movement continued. While the people of California eventually nullified S.B. 10, the courts continued to vindicate the people’s right against unfair bail schedules. The California Supreme Court published a decision in March 2021 holding that detaining someone because they cannot afford bail violates Equal Protection and Due Process. The court required an ability-to-pay assessment for defendants that considered public safety and alternatives to bail. Then in September 2022, Equal Justice Under Law won a nearly identical case in Sacramento, Welchen v. Sacramento, decided on substantive due process grounds. Both Welchen and Buffin had ripple effects, supporting reform outside California as courts in other states began to rely on the cases.
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When Rianna and Crystal were asked why they chose to be part of this litigation, they replied: “If it’s unfair for us, it’s unfair for everyone.” Rianna and Crystal were the pioneers of the movement, which saw many actors, conflicts, twists, and turns in the hopes of reforming the bail system. Buffin illustrates how impact litigation can catalyze progress and momentum in movements for law reform by drawing in social justice lawyers, brave plaintiffs, progressive public officials, and even conflict and adaptability in response to unexpected events. Rather than an intellectual exercise about social movements, movement lawyering is the practice of experiencing issues and experimenting with solutions alongside plaintiffs. Systemic change takes a village, and Equal Justice Under Law is proud to play but one part in it. There’s a place for everyone to get involved, and we invite you to play your role in the movement, too. To learn more about Buffin, Welchen, and Equal Justice Under Law’s other lawsuits challenging cash bail, visit our website.