Bail Fund Co-Optation and the Purpose of Cash Bail

Many of these donations were offered in an attempt to bail out protestors arrested during this summer’s uprising. But this new attention also opened more eyes to the effects of the cash-bail system: two-thirds of people in America’s jails—400,000 people on any given night—have not been convicted of a crime. Jocelyn Simonson, a professor at Brooklyn Law School, and likely the country’s most prominent bail scholar, has explained that “[t]hose unable to post bail must endure the violence of jails and risk losing jobs, housing, and custody of their children; no matter the facts of the case, the incentive for them to plead guilty is strong.” Jocelyn Simonson, The Bail Fund Moment, n+1 (June 22, 2020). Like virtually all other aspects of the criminal legal system, the effects of cash bail harm Black people most of all. And COVID-19, which has disproportionately affected those in jails and prisons, has compounded this damage, further surfacing the cruelty of detention, both pre- and post-conviction, for an expanding audience.

This heightened public visibility and massive influx of donations have coincided, broadly, with heated legislative showdowns in two of America’s largest states. In January 2020, New York passed a law that did not get rid of cash bail but greatly reduced the number of alleged crimes for which judges could set it. Immediately after the law went into effect, however, the changes faced fierce backlash, and only months later Governor Andrew Cuomo began pushing for rollbacks. See Karen DeWitt, NY Bail Reform Rollback Takes Effect, WAMC (July 2, 2020). In January 2021, the Illinois legislature passed the Pretrial Fairness Act, which Governor J.B. Pritzker signed into law in late February. The law, which will take effect in 2023, makes Illinois the first state to eliminate cash bail entirely. Maria Cramer, Illinois Becomes First State to Eliminate Cash Bail, N.Y. Times (Feb. 23, 2021).

As more people debate the efficacy of cash bail, two prominent myths have emerged. The first is that cash bail keeps communities safe. As the Pretrial Fairness Act headed to the desk of Governor Pritzker, the Illinois House minority leader issued a grim prediction of its effects. “Public safety is the state’s greatest responsibility to its citizens above all,” he told NPR Illinois. “The elimination of cash bail basically says that we respect the honor system for violent criminals and gang members.” Maureen Foertsch McKinney, Here’s What That Bill Ending Cash Bail Does, NPR Illinois (Jan. 29, 2021). Lawmakers in New York have made nearly identical arguments. The New York State Senate, O’Mara Criticizes Governor for Failing to Call for Changes to New York’s Bail Law: Says so-called ‘reforms’ keeping New York communities at risk (Jan. 8, 2020).

This position is far more extreme than traditional tough-on-crime conservatism. Linking cash bail to public safety completely inverts what is ostensibly our criminal legal system’s bedrock principle—that people are innocent until proven guilty. This argument also assumes—in what can only be called magical thinking—that a supposedly dangerous person charged with a crime somehow becomes un-dangerous simply by coming up with bail money. Nevertheless, on this side of the debate, the purpose of bail is to keep us safe—with the “us” always implying a very distinct “them.”

The second myth concerns the purpose of cash bail. The progressive Brennan Center for Justice posits that “[c]ash bail is used as a guarantee that a defendant will return for a trial or hearings.” Adureh Onyekwere, How Cash Bail Works, Brennan Center for Justice (Feb. 24, 2021). Vox explains that “the idea behind money bail is to provide a financial incentive for a person who has been accused of a crime—but not yet convicted—to attend court hearings at a later date.” Stephanie Wykstra, Bail reform, which could save millions of unconvicted people from jail, explained, Vox (Oct. 17, 2018). Even the American Bar Association instructs lawyers that “[t]he purpose of bail is simply to ensure that defendants will appear for trial and all pretrial hearings for which they must be present.” American Bar Association, How Courts Work (Sept. 9, 2019). (The ABA has also filed an amicus brief in which it called cash bail systems that fail to consider one’s ability to pay “unnecessary to ensure justice and public safety” and “deleterious to the rights of the accused.”) Malia Brink, ABA Bail Policy: Taking Steps to Achieve Reform (Nov. 30, 2019), American Bar Association.

This conception of the purpose of cash bail almost invariably prefaces an argument in favor of bail reform. In doing so, though, its adherents imply that bail serves a worthy cause—ensuring appearance for trial—but simply overdoes it, forcing poor, un-convicted people to sit in jail when there are far less destructive ways to get the same results. All of the data supports the last piece of that argument. Numerous studies show that those released on their own recognizance return for trial at the same or better rates than those out on cash bail. The data, in fact, has shown this for roughly 60 years, and many of those who fail to appear for trial after being released on cash bail do so for lack of resources, transportation, and support, not because they are on the run. See, e.g., Ethan Corey and Puck Lo, The ‘Failure to Appear’ Fallacy, The Appeal (Jan. 9, 2019) and Scott Kohler, Vera Institute of Justice: Manhattan Bail Project (1962), Ford Foundation. This argument also fails to reckon with the fact that if trial appearance were really the point, bail funds wouldn’t be allowed to exist at all, because those freed by bail funds face no financial penalty whatsoever for failing to appear for trial.

But this claim about the purpose of bail is wrong. The purpose of cash bail is either pretrial detention, which gives enormous leverage to prosecutors, or wealth-based pretrial detention, which pads municipal coffers and the wallets of attorneys. (Often it is both.) The safety argument is dystopian and irrational. The accountability rationale is window dressing and was empirically disproven ages ago. The state does not detain legally innocent people because it wants them to show up to trial. It does so because it often doesn’t want them to have a trial at all and because doing so makes powerful people richer.

Some elements of the system make this hard to prove conclusively. Bail hearings proceed at a dehumanizing and dizzying speed—often as little as 15 seconds from start to finish—during which judges can mock and degrade with impunity. Mustafa Z. Mirza, Dallas County’s Secret Bail Machine, The Marshall Project (Sept. 4, 2018). “Your bond just went up to $2,000,” a judge in Texas replied when a woman responded “yeah” to a question for which the judge had demanded a “yes or no” answer. Susan Joan Archer and Michael Hardy, In Texas Court: ‘Your Bond Just Went Up,’ N.Y. Times (Mar. 9, 2017).

Insha Rahman, a bail expert who worked as an attorney with the Bronx Defenders before becoming Vice President of Advocacy and Partnerships at the Vera Institute of Justice, noted that cash bail “obscures the intent of the pre-trial decision.” Rahman said that, when she “was a public defender and the judge would set $500 bail, I was left to wonder, ‘Did the judge intend this person to be released, and thought that they could make $500 bail, or did they intend for this person to remain incarcerated because they knew they couldn’t?’” Sometimes, though, system actors make revealing slips. Last year, at a bail panel held by the Appellate Judges Education Institute, a judge and a prominent litigator advised lawyers interested in undermining cash bail through their work. As the ABA’s Appellate Issues magazine summarized, their advice to prosecutors was to “recognize your discretion to refrain from asking for money bail unless the particular facts necessitate pretrial detention.” Jennifer Williams, Stop Assuming Money Bail is an Effective Tool for Criminal Justice, ABA Appellate Issues Magazine (Feb. 18, 2020).

In short, the slapdash, arbitrary, and ostensibly individualized nature of bail hearings gives the system plausible deniability. The aggregation of thousands of decisions doesn’t seem to tell a coherent story about the purpose of cash bail, and two of the most prominent camps in the bail debate have filled this narrative vacuum with myths of their own.

One phenomenon, however—although it’s certainly not the only one—helps to clarify the actual purpose of cash bail. In this moment of increased public attention, legislative changes, and unprecedented donations, some of the country’s most prominent bail funds have been grappling publicly with how to avoid co-optation by the very systems they seek to dismantle. The struggles are instructive because they show bail systems in different jurisdictions adjusting themselves not in an attempt to keep people safe or preserve the integrity of their trials but rather to parry or absorb the tactics of bail funds themselves. In doing so, they reveal systems self-consciously working in otherwise obscure ways.

A few months before New York’s bail reform was set to take effect, the Brooklyn Community Bail Fund made a striking announcement: the fund would no longer be paying any criminal bail whatsoever. In its explanation of the change, BCBF celebrated the “powerful coalition [that] helped achieved bail reform legislation that will greatly reduce the number of people devastated by pretrial jailing.” But the new law, the fund explained, would still subject thousands of New Yorkers to cash bail, and it had become clear to BCBF that “the legislature [had] turned to bail funds” to fill the gaps in the reform. “Our work is meant to demonstrate that we must abolish money bail, not make bail funds bigger. Continuing to pay bail at this point would amount to acquiescence to the continued existence of money bail,” BCBF wrote. Brooklyn Community Bail Fund, Community Bail Funds & the Fight for Freedom (Sept. 27, 2019).

Rahman, a member of BCBF’s board, explained the backstory. She said that, during negotiations over the scope of bail reform, New York’s defense bar had strongly opposed the elimination of cash bail. New York is the only state in the country that doesn’t formally allow judges to consider public safety as a factor at bail hearings. Defense attorneys thus feared that total elimination of cash bail would be replaced by the introduction of a public safety analysis that would give judges even more power to detain people pretrial than they’d had under the old system.

The final result, Rahman said, was a “compromise bill” that preserved cash bail for a smaller number of alleged offenses. “And the defense bar basically said, ‘Great. Those cases where money bail is still set? We can get the bail funds to take care of it,’” Rahman explained. “That was not a decision the bail funds wanted—they wanted to see money bail eliminated; they wanted to see themselves out of business.” The fund felt it had been “written into a statute to allow for a system that we fundamentally don’t believe in.” The only way to fully resist co-optation by that system was to stop paying criminal bail.

In a way, this tension had been present in New York’s system for years. When New York passed the Charitable Bail Act in 2012, which allowed bail funds in the state to post bail up to $2,000, Governor Cuomo heralded the change as one that would “help ensure that the state’s justice system works for all defendants regardless of their income.” New York State, Governor Cuomo Signs Legislation to Help Low-Income Defendants Meet Bail Requirements (Dec. 17, 2011). This, of course, had it completely backward: the very existence of bail funds was a testament to the fact that New York’s system was not working equally for everyone. Sharlyn Grace, the former executive director of the Chicago Community Bond Fund, described the embrace of bail funds by lawmakers that refuse to end cash bail as serving “the same function as charity or philanthropy in capitalism.” These officials, Grace argued, “inflict mass violence and deprivation” and then “dispense small amounts of relief to a chosen, select few, to try to distract from the mass violence and deprivation.”

BCBF is still active in the fight against cash bail, publishing know-your-rights materials, and helping to run a court watch program. It also still pays bail in the immigration context. Peter Goldberg, the fund’s executive director, explained to the journalist Nick Pinto that, because of the differences between criminal bail and immigration bail, “[t]here’s no question right now of our work getting co-opted by the immigration system.” Nick Pinto, Bailing Out, The New Republic (Apr. 6, 2020).

Roughly one month after BCBF resisted co-optation by refusing to pay any more criminal bail, a different bail fund made essentially the opposite decision. In February 2020, The Nashville Community Bail Fund sued Davidson County, which encompasses Nashville, seeking a formal accommodation from the county’s criminal system. Under “Davidson Local Rule Governing Bail Bonds 10(B),” the county garnishes all of the cash bail deposits and keeps a portion permanently, regardless of the ultimate disposition of the case. When the NCBF was first founded, the county had exempted the fund from this garnishment policy but later reversed course. Now, the NCBF was suing, with the help of the ACLU of Tennessee, Civil Rights Corps, and Nashville’s Choosing Justice Initiative, for an injunction that would permanently reinstate the exemption. (The author worked as a legal intern for Civil Rights Corps in the summer of 2020 but was not involved with its work on behalf of the NCBF.)

“Rule 10(B) and [the county’s] garnishment policy…threaten the existence of the NCBF by preventing it from fully recovering the bonds it posts and replenishing its revolving fund,” the complaint read. “The policies will inevitably bankrupt the NCBF, which will in turn trap people in the Davidson County jails on unaffordable financial conditions of release, with no way to exercise their fundamental pretrial liberty interest.” Complaint at 4, Nashville Community Bail Fund v. Gentry, 446 F. Supp. 3d 282.

In December 2020, the NCBF won its injunction. A consent decree announced that Davidson County would be permanently forbidden from “enforc[ing] Rule 10(B) against any third-party attempting to post a cash bail bond in Davidson County.” Consent Judgment and Decree, Nashville Community Bail Fund v. Gentry (Dec. 9, 2020).

At essentially the same time, then, one prominent bail fund had sued to be formally recognized by its bail system, while another had decided to stop paying criminal bail altogether out of a concern that it was being institutionalized. Rahim Buford, who runs the NCBF, said that he doesn’t agree with the choice made by the Brooklyn Community Bail Fund but noted that “bail funds across the country are not monolithic in how they work, because it really depends on what’s happening in that particular space.” Buford also suggested that his commitment to NCBF continuing to pay bail stems in part from his firsthand knowledge of the “harm that’s done to individuals” by incarceration. Buford spent 26 years in prison but “survived the criminal legal system” and “lived to talk about it.” The NCBF, Buford said, differs from many other bail funds in that most of its staff is comprised of “formerly caged, very directly impacted folks.”

Other funds facing garnishment policies like Davidson County’s have responded differently, however. In the fall of 2019, Cook County, Illinois, passed an ordinance that was functionally identical to the injunction won by the NCBF—an exemption for any third-party bond-payer from the fees the county skims from every bond payment. In response, the Chicago Community Bond Fund published an announcement on its website problematizing the initiative. “[W]e have never pursued special protections for nonprofit bail funds, recognizing both that individuals pay the majority of money bonds in Cook County and that bail funds should not be institutionalized,” it read. “While returning more money at the end of a case limits some of the negative impacts of money bond on Black and Brown communities, it does nothing to help the almost 2,000 people who remain incarcerated in Cook County Jail on money bonds that their loved ones cannot afford right now.” Chicago Community Bond Fund, Cook County Board of Commissioners Passes Ordinance Seeking to Create Protections for People Paying Money Bonds (Sept. 27, 2019).

The NCBF, of course, faces a different landscape in Tennessee than that which BCBF faces in New York or what bail funds face in Illinois. And, having secured an injunction that allows it to both pay bail and remain in existence, the NCBF has set its sights on initiatives, like a court-watch program, that BCBF has launched as well. Buford also reported that his fund is interested in building a coalition to “unseat some of these judges who are in bed with the bonding companies.” Jessica Lamb, one of the core staff members at BCBF, added that, while “just paying more bail is probably not going to change the system at large,” the fund’s other initiatives are ways “to get that long-term change going.”

Dawn Deaner, the former Public Defender in Nashville and the founder of the Choosing Justice Initiative, which joined the NCBF’s suit against Davidson County, argued that the injunction was actually a way of resisting the state. The revocation of the exemption to Rule 10(B), she said, was “an effort to take control back” by judges who didn’t like that “bail funds became bigger than they ever anticipated [them] becoming.” She acknowledged, however, that co-optation remains a concern. When local bail funds shift their policies, she explains, “the system adjusts,” placing pressure on public defenders to seek release for their clients in ways that may legitimate the continued existence of cash bail. “Entities like the bail fund, when they’re at the best,” she said, “are not beholden” to those incentives.

The abolitionist organization Critical Resistance encourages people to distinguish between “reformist reforms, which continue or expand the reach of policing, and abolitionist steps that work to chip away and reduce its overall impact.” Critical Resistance, Reformist reforms vs. abolitionist steps in policing. Activists, organizers, and those most harmed by the criminal legal system are best positioned to determine where on that spectrum a given bail fund’s tactics fall. The Brooklyn and Nashville case studies, however, illustrate that though the bail landscape differs across jurisdictions, bail funds across the country are currently tasked with a similar challenge: navigating systems that will, to varying degrees, tolerate and even welcome their presence if it means that cash bail remains a usable tool for exploitation and leverage for prosecutors, police, and judges.

A system designed for public safety, or for ensuring appearance at trial, simply would not operate this way. Thus, while bail funds must balance immediate harm reduction with the ultimate goal of ending all forms of pretrial detention and surveillance, the American bar must, at minimum, see cash bail not for what those in power say it is but for what it actually does.