Nonprofit Bail Fund Files Suit Against Georgia’s “Draconian” Anti-Nonprofit Bail Fund Legislation

                                From the Lancaster Bail Fund

I have mentioned a growing hostility towards cash bail as a charitable purpose.  In mostly red states, like Georgia, Kentucky, and Indiana, legislators have enacted laws prohibiting or severely restricting nonprofit bail funds.  Those organizations solicit donations and pay cash bail imposed on indigent defendants.  They make gifts to defendants.  That is a quintessentially charitable endeavor, but states are increasingly criminalizing those activities. Charitable bail funds have filed suits seeking to enjoin enforcement of those laws, but none have been successful so far. Georgia’s law took effect on July 1, 2024 and is described as the most “draconian” of anti-bail fund laws.  

Barred Business, an organization focused on assisting formerly incarcerated black women with housing, health care, and employment, among other things necessary to keep from going back to prison, filed suit seeking to enjoin the law.  The insidious part of Georgia’s law, apparently, is that it prohibits any organization from posting three cash bands per year.  Commercial bail bonds typically post surety, not cash, bonds.  Nonprofits post cash bonds with no strings attached.  Since they are not acting as surety, they are not subject to all the licensing and other regulatory requirements.  Why should they be?  They make gifts to poor indigent defendants, they are not running an insurance business.  Nevertheless, the Georgia law not only limits everybody from making more than three gifts per year (if the gift is to be used to post bail), it also subjects everybody doing so to the surety licensing requirements.  The commercial bond industry is pushing that particular aspect.  Efforts against nonprofit bail funds are as much about preserving the prison profit industry as they are about “safety.”  

Georgia’s law appears neutral on its face – applying to everybody – but is actually geared only to cash bond paying people or organizations.  Bail paid by nonprofit organizations mostly, and usually to pay bail imposed for less serious crimes (because that’s all the organizations can typically afford). Without the cash bond, defendants facing relatively minor charges languish in jail, while typically slow and grinding criminal procedures take years to complete.  Sometimes longer than what the defendant would otherwise be sentenced to if ever convicted. It is essentially punishment before conviction and applies rather exclusively to the poorest defendants.

The Georgia case has not yet been heard, but the federal court for the Northern District of Georgia issued a 14-day temporary restraining order.  Here are the introductory paragraphs from the complaint:

INTRODUCTION

1. This is a constitutional challenge to Section 4 of Georgia Senate Bill 63 (“Section 4”), which goes into effect on July 1, 2024. Section 4 severely restricts individuals, groups, and entities from engaging in charitable bail work—paying bail for those detained solely because they are impoverished— within the state of Georgia.
2. Section 4 of Senate Bill 63 imposes what are arguably the most severe restrictions on charitable bail funds in the nation. If allowed to go into effect, these restrictions will effectively eliminate charitable bail funds in Georgia.
3. Section 4 makes it a crime for Plaintiffs and others to post “more than three cash bonds [ ] per year . . . in any jurisdiction.” Meanwhile, for- profit surety companies can apparently post an unlimited number of surety bonds.
4. Section 4 also requires, subject again to criminal penalties,

“[e]very individual, corporation, charity, nonprofit organization, or group that purports to be a charitable bail fund with the purpose of soliciting donations to use for securing the release of accused persons” to submit to onerous requirements that have, until now, been applied only to for-profit surety bail companies. The application of these requirements to Plaintiffs and others similarly situated is incredibly burdensome—perhaps insurmountable—and is both irrational and arbitrary.

5. Even if an entity was able to register as a surety bonding company, the law’s plain language would still prohibit them from posting more than three cash bonds per year in any jurisdiction.
6. Section 4 violates the First Amendment rights of Plaintiffs and others similarly situated. Their charitable bail work is constitutionally protected expressive conduct, expressing Plaintiffs’ opposition to poverty- based detention and in support of the freedom for those they believe to be unjustly incarcerated. The charitable bail work also constitutes group behavior, as Plaintiffs and others similarly situated connect with each other, people detained, donors, and the broader community in collective action in opposition to poverty-based detention. Section 4 unconstitutionally burdens these fundamental rights to free speech and free association.
7. Section 4 also violates the religious liberty of Plaintiffs Vodicka and Williams and others similarly situated. Their charitable bail work is an exercise rooted in their religious faith, and Section 4’s restrictions unconstitutionally restrict that exercise under the First Amendment’s Free Exercise Clause.
8. Section 4 further violates the Due Process Clause, which requires that a law give fair notice of the conduct it punishes. Here, though, the statutory language is vague and incoherent, leaving Plaintiffs and others similarly situated in the dark about what activities are prohibited under the law.
9. Section 4 also violates the Equal Protection rights of Plaintiffs and others similarly situated because it irrationally preferences the activities of for-profit surety bonding companies over those of people engaged in charitable bail work. Finally, it violates the Eighth Amendment’s Excessive Bail Clause, which prohibits imposing a condition on pretrial arrestees unrelated to the ostensible purpose for which bail is required.
10. Defendants cannot demonstrate any government interest— whether rational, substantial, or compelling—for Section 4’s restrictions, which pose an existential threat to the bail work undertaken by Plaintiffs and others similarly situated.
11. Plaintiffs seek declaratory and injunctive relief to enjoin Section 4’s enforcement. Without such relief, Plaintiffs will suffer immediate and irreparable injury.

darryll k. jones