SAN FRANCISCO (KGO) -- If you get arrested, the amount of time you spend in jail might have a lot to do with how much money you have.
California's bail system is the target of a lawsuit and San Francisco's city attorney said he won't defend it.
"The state's money-based bail system unfairly allows the wealthy to go free while the poor and working class are forced to remain in jail," said Dennis Herrera.
That's the argument made in a lawsuit filed against San Francisco and its sheriff Vicki Hennessy. Officially, her lawyer is the city attorney. The thing is, both of them agree with the lawsuit.
Herrera says that law sets bail at a specific amount for each offense, not accounting for factors like flight risk or ability to pay. A judge can make changes like that at the first court appearance, but until a judge hears the case.
"That's why today my office filed papers in federal court indicating that we will not defend that law," said Dennis Herrera. "A poor person who possesses marijuana for sale could be locked up because they couldn't afford to pay $10,000 in bail, while someone able to pay $150,000 could be out of bail for rape."
Herrera says it puts taxpayers on the hook for people who might lose their jobs or their homes awaiting trial. He joins a growing coalition who'd like to change the state system and model it after the feds.
"The federal system uses a risk based model, detaining only those people who are either a flight risk or a danger to others," Herrera said.
Of course, in the world of bail bonds, changes like Herrera's suggesting would likely be bad for business, a business that according to one bondsman has actually been helping with some of these issues.
"Just because you don't have money does not mean you cannot bail," said bail bondsmen Peter Santiago.
Santiago's been doing this for 15 years, and says the standard 10 percent up front has been changing. Many bondsmen offer credit, some with no down payment.
"We extend credit to families that would never get loans of $100,000 if they walk into a bank," Santiago said.
It's often based on how likely someone is to skip town, something a judge would also consider. In fact, Herrera would have a judge review all cases to set bail, even in the middle of the night.
"We are all entitled to legal protection under the law. It doesn't say we're entitled equal protection under the law only if it's convenient," Herrera said.
San Francisco City Attorney files claim over state's bail system he calls unfair