Community bail funds are an innovative challenge to a trenchant problem in the American criminal legal system: pretrial detention of people who have not yet been convicted of crimes they have been charged with. On any given day, half a million people who haven’t been convicted sit in U.S. jails, many of them because they cannot afford bail.
Courts across the United States use cash bail, ostensibly as a means of ensuring that people come back to court for their trials. In theory, defendants who have been arrested give the court a certain amount of money to hold pretrial, which they get back once they show up for their court date. In practice, however, what happens is more complicated. Generally, a family member or friend will pay a bail bondsman a set percentage of the defendant’s bail (usually 10-15%) which they forfeit, and the bondsman puts up their bail, which the payee generally cosigns, meaning they bear the risk if the defendant skips bail. If a defendant cannot afford to pay their bail or to pay a bondsman, they have to stay in jail pretrial, even though they are legally presumed innocent until proven guilty.
Being confined pretrial has serious adverse consequences for defendants. Just a few days of detention can negatively impact employment, family relationships, and housing stability. What’s more, people who are incarcerated pretrial are more likely to be convicted and more likely to take a guilty plea. This is particularly true in minor misdemeanor cases, where people who plead guilty are likely to be sentenced to “time served” – guilty or not, taking the plea means getting out of jail immediately. Beyond pressure to plead guilty, there are several other reasons that may explain why the conviction rate is higher for people detained pretrial. For one, it’s harder to meet with a lawyer while in jail. Second, since the defendant will be unable to work while detained, they may be losing income and therefore have less ability to pay for their defense. Third, sitting in jail makes it much more difficult for the defendant to do anything that might help their case, such as enrolling in a counseling program or paying restitution.
Community bail funds aim to minimize the harms of pretrial detention while disrupting the often predatory bail bond industry. The premise is simple: community members administer a pool of money which they use to pay people’s bail. The fund gets its money back when people make their court dates. Instead of family members or friends paying bail, this nonprofit organization steps in and does so on behalf of the larger community. And bail funds have had remarkable success, reporting that 90% of people make their court dates – challenging the assumption that money bail is necessary to guarantee that people will come back to court. These bail funds send a message: members of the community would prefer to have people at home and in society than locked up without a conviction.
Bail funds have been established across the United States, generally in larger cities. The Chicago Community Bond Fund has freed 311 people, paying $1,697,945 on bail for them. The Massachusetts Bail Fund accepts referrals for people jailed throughout the entire state, and will post bail of up to $500 or contribute up to $500 to a larger bail if family and friends can cover the rest. In October 2016, it reported that 52% of the people it had bailed out had their cases dismissed. This dismissal rate demonstrates one of the major differences community bail funds can make; often, people are coerced into pleading guilty through pretrial detention. But if they are no longer being held, the state cannot use the defendant’s liberty as a bargaining chip. Then, if the state lacks the evidence to actually prove their case, they will simply dismiss the charges.
These organizations generally see themselves as engaging in political resistance, so much so that one bail fund decided to end its bail payments when it perceived that it had become too entrenched in the system to be meaningfully instigating bail reform. The purpose of these funds is not to prop up systems of injustice, but to shine a light on unfair practices and demonstrate that cash bail is not necessary to ensure that people will return to jail. Jocelyn Simonson, an assistant professor at Brooklyn Law School, has argued that these bail funds engage in “bail nullification,” akin to jury nullification. The community uses the act of paying bail in order to make a larger point about the fairness (or unfairness) of the legal system, just as juries might vote not to convict someone who is legally guilty because they feel that outcome would be unjust.
Community bail funds have been able to make a concrete difference in defendants’ lives while also demonstrating a larger point about the legal system’s penalization of poverty. Ultimately, the goal is not to pay everyone’s bail, but to end a system of money bail which allows for people to be incarcerated without having been convicted of anything. Community bail funds are an important symbolic step; members of the community make a powerful statement about the presumption of innocence and who deserves incarceration when they refuse to allow people to be jailed simply because they do not have money.
