Opinion | Everyday Injustice Right Before My Eyes

San Francisco Hall of Justice – Photo by David M. Greenwald

We talk a lot about the everyday injustice that happens in our court system. Often there is both a victim and a perpetrator involved in that injustice, but sometimes you see something else entirely—a system where someone tries to do the right thing and still ends up conceding there was no other choice.

That’s what I saw this week in San Francisco.

The accused in the case was reluctantly kept in custody by Judge Frankel. I’ve sat in Judge Frankel’s courtroom many times and, for the most part, I believe he goes out of his way to be fair. In this case he seemed to be trying very hard to find a way to release the accused.

What we know is that the man was arrested on Feb. 25. At that point, the judge decided against home detention because the man had a job, was in danger of losing his housing, and had a very pregnant girlfriend who also has a young child, around four years old.

Instead, Judge Frankel placed him on electronic monitoring.

But the man very quickly made a serious mistake. He drove without a license. He was caught. There were drugs and possibly weapons in the car, though those items were not tied to him.

Judge Frankel acknowledged that the violation of his release terms—driving without a license—was a very minor offense.

But let’s be honest. It was also very stupid. He knew he was not supposed to drive. He knew he had been released on the condition that he violate no laws. To be blunt, he screwed up badly.

The judge went back and forth with the public defender and the district attorney. The DA wanted him to remain in custody with a preliminary hearing set for next week. The public defender argued for release, either on the same terms as before or possibly on home detention.

The judge appeared to be leaning in that direction. But the DA had the stronger argument this time, pointing out that the court had already tried a less restrictive option—and it had failed.

While the judge acknowledged that the violation itself was minor, he ultimately concluded that he could not release the man because the less restrictive conditions had already been violated.

At that point, the man lost it.

He told his girlfriend that he loved her. He began sobbing in court and breaking down emotionally. They moved him into the holding room, and from the courtroom we could clearly hear him yelling, slamming what sounded like a wall or table, followed by a long period of sobbing.

“I didn’t do anything,” he yelled.

In some ways—most ways—that isn’t true. He exercised poor judgment, violated the law, violated the terms of his release, and got caught.

There is no doubt that many people will have little sympathy for him. He was given a chance to remain out of custody and he blew it. That argument is not unreasonable.

But there is another way to look at what happened.

One of the reasons reformers have long criticized the cash bail system is not simply that it is unfair to people living on the margins—it is that it often makes things worse. People who are held in jail tend to fare worse both in their cases and in their lives afterward.

Consider what this man is likely facing now.

He had a job that he will most likely lose. If he is eventually convicted of a felony, he will likely struggle to find another one.

Moreover, he was already at risk of losing his housing. Once he is released, without a job and with a criminal case hanging over him, the odds of homelessness—or at least severe housing insecurity—rise dramatically.

That kind of instability can push someone from committing minor offenses to relying on crime simply to survive.

And the consequences won’t fall on him alone.

He has a child on the way. He has a pregnant girlfriend. There is another young child involved as well. Their lives will be shaped by what happens next.

What you see in a moment like this is how someone can slip away through the cracks of a system where no one involved appears malicious.

The judge was thoughtful. The prosecutor made a reasonable argument based on the facts. The defense attorney advocated for the least restrictive outcome.

And yet the system still produced a result that will likely make things worse.

Now you have one or two children who may grow up with a father cycling in and out of the system—placing them in a hole they may struggle to climb out of, and the baby hasn’t even been born yet.

We are a country willing to spend $100,000 to $150,000 a year to lock someone in a cage, but we cannot seem to figure out how to invest even a fraction of that amount in preventing people from falling into the system in the first place.

The judge and the prosecutor made decisions that were reasonable and rational.

But those reasonable and rational decisions may ultimately produce a worse outcome—for the man, for his family, and for the broader community.

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