Forcing bail funds under the thumb of the state
First bail funds became regulated. Now, they might become outlawed.
During the 2020 presidential primary, Hervis Rogers waited over seven hours to vote at his local precinct. Local news interviewed Rogers and lauded his fortitude in sticking it out in line. Then the footage came across Texas Governor Greg Abbott’s desk and nameless sleuths uncovered an unfortunate fact - that Rogers, out on parole for a felony, was barred from voting. He was arrested on felony violation of voting laws and booked into jail, with bond set at an unattainable $100,000. Fortunately, the Bail Project stepped in to post bail. Rogers spent three nights in jail, but lawyers estimate he would have likely spent another 16 months in jail if not for the intervention of the Bail Project. Rogers returned to his community, and eventually prosecutors dropped the case.
That was in 2020. A year later, Texas legislators added significant restrictions to charitable bail funds, including a prohibition against posting bail for anyone previously convicted of a violent offense. If a repeat of Roger’s case happened today, the Bail Project would be barred from posting bail.
Texas’ restrictions on bail funds come amid a surge in anti-bail fund legislation passed across the country. Between 2021 and 2022, legislators introduced bills regulating or restricting bail funds in at least nine states. Earlier this month, a sweeping anti-bail fund bill cleared both chambers of the Georgia legislature. Passed in reaction to Black bailout networks and the work of the Atlanta Solidarity Fund to post bond for jailed 2020 racial justice and recent Stop Cop City protesters, the bill limits nonprofits and charities to posting a mere three cash bonds per year. The bill is expected to be signed into law at the end of the legislative session. A Tennessee bill outright prohibiting the clerk of court from accepting bail posted by charitable bail organizations is flying through the legislature.
—
Restrictions on bail funds are proliferating, but regulation of bail funds at all was far from an inevitability. Since the 19th century, bail funds have operated independently of the state, as rebuke and rejection of the state policies of incarceration and slavery.
Some bail fund organizers trace the lineage of bail funds back to the 1840s, when free Black people organized funding to buy their family members out of slavery. While some abolitionists rejected payments to slaveholders on the grounds that it acquiesced to the idea that people could be bought and sold, many also recognized the value of buying individual freedom as a stopgap measure until everyone could be free. That tension between fighting for systematic reform while engaging in harm reduction efforts remains in today’s bail fund projects.
In the 1920s, bail funds as we know them emerged, with the idea that money could be infinitely recycled so long as the people bailed out met their court dates. In 1920, the ACLU set up a $300,000 fund to “free radicals prosecuted under sedition laws” during the First Red Scare, a very political rejection of American policy policing speech and dissent. Then, during the civil rights movement, SNCC and the Civil Rights Congress set up funds to bail out civil rights activists. Bail fund organizing, formal and informal, proliferated through many channels. A student government set up a bail fund for activists arrested while protesting the Vietnam War. After Stonewall, LGBTQ organizers created the Gay Liberation Front bail fund, which protected the gay and trans people too often exposed to the criminal punishment system.
Through the decades, bail funds have been a mechanism to fight the cash bail system’s grip on people in poverty. As the cash bail system grew, so did the strength of bail funds. Some organized within structured charitable organizations and churches (the Quakers, in particular, engaged in bail work), and sometimes through informal channels of people passing the hat to get a community member out of pretrial detention.
Bail fund organizations are over a century old, yet the idea of regulating them as a distinct entity didn’t arise until 2012. In New York, a vibrant infrastructure of bail funds changed the game around poverty-based pretrial incarceration. In 2007, the Bronx Freedom Fund opened its doors and began posting bail for Bronx residents stuck in pretrial detention. Over 96% of the people the Fund posted bail for met their court dates, making the money donated to the bail fund nearly infinitely recyclable. The Bronx Freedom Fund freed hundreds of predominantly Black and Latino people from pretrial detention, allowing them to return to their lives with less disruption during the pretrial period.
In 2012, the tides began to shift. Atara Rich-Shea, the Pre-Trial Freedom Organizer at the Community Justice Exchange, described the reaction to the Bronx Freedom Fund and other bail funds: “When the funds began posting, it was a shock to the structure. It was about the shock of open solidarity for strangers.” In 2012, New York passed a charitable bail act that mandated that bail organizations previously operating outside of the system register as nonprofits subject to a state licensing regime. The law, according to Rich-Shea, “established the bail fund as a thing to regulate. It established bail funds not as an act of solidarity or an act of community support, but as a thing in itself. And then the state gets to say who can and can’t be part of it.”
Rich-Shea pointed to the long history of community bail funds operating outside parameters set by the state, and noted that the concept of regulating bail funds was not an inevitability. “If you set up a tool library in your neighborhood,” said Rich-Shea, “and you decide to make it a nonprofit, the government doesn’t come around and set up a law that says ‘you’re a tool library, we’re going to start regulating.’”
Many of the proposed and enacted restrictions on bail funds aren’t as blatant as the Georgia bill’s proposed three bonds per year restriction, or Tennessee’s prohibition against posting bail for anyone not related by blood. But even when lawmakers aren’t effectively outlawing community bail funds, any regulation puts bail funds under the thumb of the state. Regulation paves the path towards ever more onerous restrictions, limiting the vital work that community-driven organizations do to operate outside of state strictures.
A New York law limits bail funds to posting only for low-level misdemeanors with bonds set at under $2000. A Virginia law requires organizations to pay a $900 nonrefundable fee to a licensing board every two years and allows the state Department of Criminal Justice Services to revoke licenses if the bail fund demonstrates “incompetency or untrustworthiness,” a vague provision that allows broad discretion. In 2019, prior to the introduction of bills effectively outlawing charitable bail funds, a Tennessee court ordered that the Nashville Community Bail Fund wouldn’t receive the entire cash amount put up, limiting the recyclability of bail fund money.
Accelerating the creep of regulation into outright restriction, bail fund restrictions strike at the heart of the long history of people most impacted by the carceral system engaging in the organizing. The head of Nashville Community Bail Fund served 26 years for a murder committed when he was 19 years old. When he got out of prison, he decided to help other people impacted by the carceral system. The Nashville Community Bail Fund notes that many of their volunteers also have criminal histories. These are the people who most viscerally understand how jail and prison can upend a person’s life and are, therefore, more committed to mitigating the harm of the system where they can. Some states force community members with the most direct experience out of organizing. Regulations passed include barring people who have a felony conviction, lack a high school diploma, or are unwilling to undergo extensive surveillance from licensure. The Georgia bill would shunt charitable bail funds into the category of professional bondsmen, which, aside from rendering them unable to recommend lawyers - a key function of the Atlanta Solidarity Fund - would subject organizers to an extensive background check conducted by the FBI.
Rich-Shea calls regulation of bail funds “the outline of a takeover.” There is little public safety justification for eradication of cash bail. A statistical study published in the Chicago Journal of Law & Economics found that, while people released from pretrial detention were rearrested at slightly higher rates, the overall effect was offset by the decrease in recidivism after two years compared to people trapped in pretrial detention. The finding makes sense - minimizing time in jail helps people stay employed and maintain the community relationships that allow them to succeed once they’ve served their sentence. It’s worth noting, too, that many of the people subjected to pretrial detention should never have been arrested in the first place. In Nashville and Memphis, charges were eventually dropped for 60% of the people for which the bail funds posted bond. Pretrial detention imposes punishment with no regard to guilt or innocence.
Prosecutors use that primary punishment as a weapon of coercion against people trapped in the pretrial carceral system. In 2023, 427,000 people were held in pre-trial detention, and over two-thirds of people in city and county jails have not been convicted of a crime and are entitled to the presumption of innocence. Statistics show that less than 50% of defendants post bail, even when bail is set at $5,000 or less. In Nashville, a bail fund has posted bonds as low as $50, helping people who completely lack the financial or logistical means to escape pre-trial detention. Isolated from friends and family, and facing spiraling economic precarity, some innocent people stuck in pretrial detention decide to plead guilty just to get out of jail. In an opinion piece for The New York Times, Tina Rosenberg called the money bail system “a factory that manufactures guilty pleas.” That assertion is backed up by the data: a study found that felony defendants plead guilty 2.86 times faster when locked up in pretrial detention. Another found that pretrial detention increased the probability of conviction by 13% in New York City. These statistics damn pretrial detention as a powerful weapon of coercion. People in jail want to be out, and they’ll plead guilty to offenses they didn’t commit to secure release.
Within the two-tiered system of justice where wealth runs the game, posting bail for poor defendants is a protest against institutionalized injustice. Bailing out pre-trial detainees lessens the gravity towards guilty pleas and can get people out of jail who may eventually be acquitted or have the charges against them dropped. Even if the defendant is eventually convicted, escaping pretrial detention buys time to better negotiate pleas and allows people to maintain the structures of their lives before serving their time in prison. And bail funds for protesters are an insurance policy against the life disruptions posed by state repression. Bail funds alter the course of people’s lives immediately, without waiting on policy to restrain the state’s incarceration machine. Rich-Shea calls bail fund efforts “a powerful message to actually free people from incarceration without negotiating with the system about it.”
Regulation and restriction of bail funds exacerbates a profoundly unequal criminal justice system, in which poverty and political power can dictate whether the state can incarcerate people who, under the Constitution, should be presumed innocent. Bail funds should be seen through the prism of protest; their defense is necessary to protect one of the most pragmatic tactics against a fundamentally unjust carceral system.