Do New Laws Seek To Regulate Charitable Bail, Or End It?

By Jack Karp | April 5, 2024, 7:04 PM EDT ·

blonde woman in white coat looking into distance

Sherry Baird, a limo driver from Atlanta, spent nearly a month in jail in 2022 because she couldn't afford the more than $11,000 bail that was set after she was arrested for suspected drug possession. While a charitable bail fund eventually fronted the money for her release, a recently passed bill in Georgia would severely limit activity by such groups in the future. It's one in a wave of similar laws being considered around the country. (Courtesy of The Bail Project)

When Atlanta limo driver Sherry Baird was arrested in 2022 for allegedly having drugs in her car, she was forced to spend almost a month in jail because she couldn't afford her $11,200 bail.

While she was incarcerated, her blind dog was removed from her home and put up for adoption by the county. And with little movement on her case ever since — she has yet to be indicted — she would likely still be in jail if The Bail Project, a California-based nonprofit dedicated to providing bail assistance to financially needy defendants, hadn't stepped in to help pay for her release.

Other defendants in similar situations may soon be cut off from that kind of help, though, thanks to legislation waiting to be signed by Georgia Gov. Brian Kemp. The bill, known as S.B. 63, would bar charitable bail funds from paying more than three cash bonds per year in a jurisdiction and require them to meet the same requirements as professional bail bond agencies.

Similar bills aimed at curtailing — some say criminalizing — the use of charitable bail are being considered in multiple states, where advocates for the legislation say it's necessary to keep dangerous criminals off the street.

But bail reform activists say that what the bills really do is perpetuate an inequitable cash bail system that makes freedom dependent on wealth.

"When these states pursue restrictions of charitable bail organizations, without investing in alternatives to cash bail, they're effectively doubling-down on a broken system," said Jeremy Cherson, the director of communications for the Bail Project. "Restricting charitable bail organizations in these circumstances is a bit like closing a food pantry and claiming that you're solving hunger — it's extremely misguided."

Necessary Regulation or a 'Faustian' Bargain?

Charitable bail funds are organizations that pool money from donations to help pay cash bail for jailed defendants who can't afford to either pay bail themselves or to use for-profit bail bond agents.

The National Bail Fund Network currently lists over 90 community bail funds across the country. Those funds often operate locally or focus on helping defendants from a specific community, such as LGBTQ defendants, sex workers, incarcerated mothers or protesters.

Charitable bail organizations can be small initiatives that rely on individual donors or larger organizations that raise millions of dollars. The Bail Project, for instance, received individual contributions totaling over $5.5 million and foundation grants amounting to $7.4 million in the fiscal year ending June 30, 2023, according to the group's latest annual report.

They offer an alternative to for-profit bail bond agents, which pay a defendant's bail in exchange for collateral, usually around 10% of the total bail amount. The bail bond agent keeps that fee as compensation even if the defendant goes on to appear in court. If a defendant doesn't show up for court, the bond agent has the authority to arrest the defendant.

Those in the bail bond industry point out that, unlike charitable bail funds, bail bond agents are subject to state licensing requirements and are often regulated by state insurance departments. California bail bond agents, for instance, must complete at least 20 hours of classroom study, pass an exam, take continuing bail education courses, and renew their license every two years.

"The for-profit corporate surety industry is heavily regulated as an insurance product," according to Jeffrey J. Clayton, executive director of the American Bail Coalition, an industry trade group. Similar licensing and basic fiduciary rules for charitable bail would provide accountability and protect the large amount of cash being donated, he added.

But critics of cash bail and for-profit bail bond agents say they prey on desperate people, forcing defendants and their families to choose between predatory lending agreements that can be financially devastating or allowing their loved ones to remain in jail.

"That's a Faustian bargain," said Cherson.

Ensuring Defendants Show Up for Court

Georgia's proposed law may be "the most draconian" measure that has been floated so far to limit charitable bail, but it's not the only one, according to Cherson.

The Safer Kentucky Act, passed by that state's legislature and sent to the governor to sign on March 28, would, among other things, bar charitable bail funds from paying any bond over $5,000 or for those accused of certain offenses. It would also subject bail funds to reporting requirements.

Legislation introduced in Tennessee in February would bar court clerks from accepting any cash bail from charitable bail organizations, while bills introduced in Virginia and Washington state in January would apply licensing and reporting requirements to bail funds.

And the Seventh Circuit in August upheld a 2022 Indiana law requiring charitable bail organizations to be certified by the state and making that certification contingent on bail funds denying bail to defendants charged with violent crimes or with past violent crime convictions.

According to Georgia Republican state Sen. Randy Robertson, who introduced that state's legislation, the bills are necessary to ensure that defendants show up to court. He told Law360 in an interview that part of his state had seen a "tremendous amount" of defendants who fail to appear for their court dates.

Unlike traditional bail agents, charitable bail funds aren't required to monitor defendants to ensure they attend their hearings, explained Republican Virginia state Del. Wren Williams, who sponsored that state's H.B. 846.

"The charitable bail funds operate by posting bail and washing their hands of the matter. They don't seem interested in whether a defendant will return for their court date," Williams said.

Supporters of multiple states' efforts to limit charitable bail also say the bills will address rising crime rates and the frequency with which dangerous criminals are being released from jail.

As an example, Washington State Sen. Mike Padden, a Republican representing the Spokane area, has pointed to a suspect with eight previous felony convictions who went on to shoot a state trooper after being bailed out of a Washington state jail, where he was being held on charges of possessing a stolen vehicle and obstructing a law enforcement officer, by a community bail fund.

"There are now more criminals on the street than ever in recent history, and irresponsible bail funds are exacerbating the problem and decreasing public safety in the name of social justice," Padden said in a March statement.

Requiring charitable bail funds to adhere to the same regulations that govern bail bonds agents also protects those funds' donors and provides accountability, according to the bills' supporters, who point out that the for-profit bond industry is heavily regulated.

"It ensures integrity as to the handling of donor and client moneys, guarantees proper governmental oversight and transparency, and makes certain that the people being offered charitable bail are truly in need of aid," said Clayton.

Wren in Virginia put it more bluntly.

"They're selling get out of jail free cards to anyone and everyone including those who intend to continue to do harm to our communities," Wren said. Limiting the use of charitable bail "is a much-needed change to help keep our communities safer."

'Doubling Down' on a Broken System

But critics say that what these bills really do is ensure that more poor people sit in jail while awaiting trial.

Cherson said that "doubling down" on an inequitable and broken system will subject more people to unnecessary incarceration, keeping them from going to work, caring for their children or paying their bills.

"Their families and loved ones will be forced to go to predatory, for-profit bail bonds agents who charge them fees that they can barely afford and force them into predatory lending agreements," Cherson said. "They'll agree to hostile lending terms that will throw them deeper into debt."

The instability that extended jail stays can create in the lives of defendants and their families' lives actually harms public safety, explained Cherson, citing 2013 research by the Laura and John Arnold Foundation showing that just 48 hours of incarceration increases a person's likelihood of being arrested again in the future.

"Sometimes, just that brief period is enough to throw one's life into disarray — to threaten the tenuous hold someone has on a new job or their ability to make that month's rent," he said.

Cherson also pushed back on the idea that defendants whose bail is paid by charitable funds are less likely to show up in court, pointing out that 91% of the nearly 30,000 people The Bail Project has helped have returned for their court dates.

New limits on charitable bail funds also threaten to exacerbate overcrowding in jails, according to Chanelle Helm, core lead organizer of Black Lives Matter Louisville, who works with the Louisville Community Bail Fund.

"Our jails are overpopulated daily, and many of those people are not violent crime offenders, which is really frustrating to us," Helm said, adding that a lot of incarcerated defendants also have physical or mental health issues, and often can't get the care they need in jail.

Helm also questioned the motivations behind the bills, suggesting they were really aimed at silencing protesters who can sometimes wind up behind bars for their activities only to be bailed out by community bail funds.

Georgia's bill, critics have noted, was passed in the wake of long-running protests against a proposed Atlanta police training facility, labeled by its opponents as "Cop City." And Helm said that Kentucky's bill came partly in response to Black Lives Matter protests.

man in suit speaking at Capital

Georgia state Sen. Randy Robertson, the Republican lawmaker who sponsored a recently passed bill that would limit the activities of charitable bail funds, speaks at the Georgia State Capital in Atlanta in February 2023. (Matthew Pearson/WABE via AP, File)

Robertson, who sponsored Georgia's bill, seemed to acknowledge the protests are one driver of the legislation, saying that he's seen protesters come into the state, intentionally get arrested and then be bailed out by organizations endorsing their protest.

"There's always concerns when individuals travel and come into the state in order to commit these acts and then have somebody step up and pay the cash as to whether they'll show back up or not," Robertson said.

Finally, Cherson said it doesn't make sense to subject charitable bail organizations to extensive regulation since their work is intended to be temporary.

"It was never our intention to systematize our work or to play some permanent role in the pretrial systems of the places we operate. That's the role of government," Cherson explained. "We advocate for policy changes that strengthen due process and limit or eliminate wealth-based detention, which are policies that, once enacted, will put us out of business."

Courtroom Fights Over Charitable Bail

Fights over the future of charitable bail aren't just taking place in statehouses. They're playing out in courthouses as well.

The Bail Project sued Indiana's insurance commissioner in 2022 over that state's law restricting charitable bail organizations from paying bail for certain defendants.

The Bail Project argued that the law limited its expressive activity, in violation of the First Amendment, since the organization's payment of defendants' bail was a part of its effort to protest the ongoing use of cash bail in general.

The group also alleged that the law violated the 14th Amendment's equal protection clause by restricting its activities while allowing friends, families and churches to pay bail for defendants, and bail agents to post bonds.

The Seventh Circuit upheld Indiana's law in August, however, saying that The Bail Project's activities aren't protected by the First Amendment since those activities can't express an opposition to cash bail without additional explanatory speech.

"On its own, paying bail for a pretrial defendant does not communicate even the most general version of The Bail Project's message — its opposition to cash bail," the panel said. It also rejected the organization's equal protection claim, saying the state has a legitimate interest in regulating pretrial detention.

"The Bail Project's argument that the posting of bail was protected speech strained credibility," said Clayton with the American Bail Coalition. It was "a feeble position to take, considering what the bail insurance industry faces on a day-in, day-out basis."

The Bail Project has found itself on the other side of lawsuits as well.

The parents of 17-year-old Madelynn Troutt sued the organization in 2022 after a defendant it helped release from jail crashed a stolen car into their daughter's vehicle while intoxicated, killing her.

The parents claimed that the organization was negligent in failing to investigate the defendant's criminal history and the likelihood that he might reoffend before posting his bail.

A Kentucky state judge eventually dismissed the suit, though, finding that posting someone's bond doesn't create a duty to investigate their suitability for release or to monitor their activities. But the incident was one of the drivers of the Safer Kentucky Act, whose charitable bail provisions are known as Madelynn's Law.

Legal battles over charitable bail could soon spill into criminal court as well.

In May, three organizers with the Atlanta Solidarity Fund were arrested for money laundering and charity fraud.

Prosecutors say the group, which has paid bail for people arrested during the sometimes violent protests against the so-called "Cop City" facility, is using donated money to fund violent crimes. The group's defenders, though, say the arrests, like the bills restricting charitable bail, are really intended to chill protesters' speech.

"This is part of a broader attempt to intimidate and silence civilians," Cherson said.

More Legislation to Come?

It's too early to tell if more states will follow the lead of Kentucky, Indiana and others that are looking to place limits on charitable bail funds.

But for-profit bail bonds agents are likely lobbying lawmakers to pursue these bills since charitable bail organizations pose "an existential threat" to the bail bond industry, Cherson pointed out.

The American Bail Coalition is in favor of state insurance commissioners or the Uniform Law Commission devising model legislation to regulate charitable bail, according to Clayton.

"If a uniform charitable bail law could be drafted and the federal government could incentivize states to adopt such a law, I would expect we would get behind such an effort," Clayton said, though he added that his group isn't very involved in that effort beyond being a clearinghouse for information.

But the American Legislative Exchange Council, known for pushing conservative model legislation, is involved in these efforts to draft and enact model legislation, and the American Bail Coalition is one of ALEC's members and has a representative on ALEC's Criminal Justice Task Force, according to the Center for Media and Democracy, a progressive watchdog organization.

The legislation's advocates, meanwhile, insist the only factor driving these bills is rising crime.

In Georgia, Robertson said H.B. 63 was intended to "lower some of the crime rates where these recidivists are just walking in and walking out and going back out on the streets and committing more crimes."

But the bills' opponents say all they'll really do is perpetuate a system that actually harms public safety.

"If we really want to tackle the so-called revolving door of the criminal justice system, we need to do so by investing in the services and community infrastructure that address the root causes of crime in the first place," Cherson said.

--Editing by Emily Kokoll.

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