The Unconstitutional Hostility Towards Nonprofit Bail Funds
I told you last year about a growing backlash against charitable bail organizations. Georgia is one of the leading states in that regard. Earlier this year Georgia enacted a law effectively putting charitable bail organizations out of business. The law prohibits the simple act of making cash gifts to people unable to pay their own bail. And it prohibits mom and pop nonprofits from paying cash bails unless they jump through all the regulatory hoops that for-profit bail bond companies have to jump through. As if nonprofit bail funds are insurers just looking to profit from some poor locked up defendant. It doesn’t take a GED to see how absurdly unconstitutional it all must be.
Barred Business, a charitable bail fund in Georgia, filed suit immediately after the law took effect on July 1. By July 12, a federal district court had already granted a preliminary injunction. Barred Business is a non-religious organization but organized worshippers, too, maintain charitable bail funds according to the District Court:
Plaintiff John Cole Vodicka is a member of Oconee Street United Methodist Church (the “Church”) in Athens, Georgia. He coordinates the charitable bail fund that is administered by the Church’s Justice & Outreach Committee. The bail fund was started in 2021. Members of the congregation who were engaged in the Church’s court-watching program noticed that people were being held in pretrial detention for extended periods of time on very small bail amounts because they could not afford to pay. After the death of George Floyd, they were inspired to create a bail fund as a concrete step that they could take to oppose perceived overreaches of the criminal legal system. The Church set aside money to be used for bailing people out. Mr. Vodicka has spent hundreds of hours volunteering for the bail fund, including posting cash bail for many dozens of people held in the Athens-Clarke County Jail. He knows that other members of the congregation sometimes pay cash bail, too. Mr. Vodicka has made well over 3 cash bail payments already this year. Since SB 63 was signed, he posted 10 cash bail payments. The individuals had spent a collective 462 days in jail. All were charged with misdemeanors; the highest bail amount of that group was $150. Mr. Vodicka avers that those involved in the criminal legal system know that his charitable bail work is driven both by his faith and his opposition to poverty-based detention, and that every judge in the courthouse is familiar with him and the Church’s bail work. Public defenders, judges, and law enforcement have all asked him to bail out individuals.
There is just so much good sense and constitutionalism — speech, association, religion, due process and equal protection — wrapped up in nonprofit bail funds. The District Court determined that the Georgia law is vague, impermissibly restricts expressive conduct, and imposes content-based restrictions on speech without a sufficient government interest. It is an informative, well-written opinion. The State appealed to the Eleventh Circuit, filing its Opening Brief in late August. The Answer Brief is due later this month.
Meanwhile, the U.S. House of Representatives passed a federal version of the Georgia Law just last week. The Bill’s sponsor had this to say about the bill:
The radical left-wing approach to prosecution and bail have had deadly consequences throughout our country, which is why I introduced the Keeping Violent Offenders Off Our Streets Act,” said Rep. Fitzgerald (WI-05). “This bill will protect our communities by defining bail bonds as insurance products and by bringing charitable bail funds under state insurance regulation. These changes will add a much-needed layer of transparency and accountability to bail funds, that up until now, have been operating in the shadows without oversight. I was grateful to see my bill pass this week—and I look forward to seeing it make its way through the Senate next.”
Background: Groups like the Bail Project and Minnesota Freedom Fund aggressively solicit funds to pay bail with little regard to the criminal histories of those they’re putting back on the streets. The Minnesota Freedom Fund paid the bail for notable offenders including George Howard, a man charged with domestic abuse who two weeks after having his bail paid, was charged with second-degree murder in a road rage incident.
What’s most striking is the straight-faced admission that the bill seeks to deny bail, by legislative fiat, to people who have not been convicted of a crime. Said with a straight face! It’s for a judge to decide whether bail should be set and how much. To legislate against payment of the bail once its set is an affront to the Eighth Amendment.
The Committee Report accompanying the bill is a real piece of political work, too. The majority view reads like a campaign script against Vice President Harris, who on just one occasion tweeted about bail funds for George Floyd protestors. According to the dissenting views, the report relies on “patently false” assertions for political gain:
Instead of addressing the real needs of the American people, and leaving state law issues to the states, Republicans are poised to advance another bill that is designed only to advance false campaign rhetoric. H.R. 8205 is another baseless attempt by the Majority to engage in fearmongering and to label Democrats as “soft on crime,” while ignoring their own documented red state murder problem, the mountain of data showing that crime has been steadily declining throughout the U.S. under the Biden-Harris Administration, and the data showing that bail reform policies have not contributed to increases in crime that occurred during the pandemic. In bringing up this legislation, the Majority seeks to distract the American people from the fact that their own actions have repeatedly made every American–from presidential candidates to school children–more at risk at every turn by failing to support law enforcement funding and commonsense gun safety measures. For these reasons, I dissent and urge my colleagues to oppose this flawed legislation.
But its not just election year politics behind the effort. An investigative report concludes the bail bonds industry, back by predatory pay-day lenders, are keenly interested in maintaining the current bail system:
The shadowy for-profit bail industry is behind a first-of-its-kind federal effort to criminalize charitable efforts designed to help people who can’t afford to post bail. The legislation, which civil rights groups warn is part of an ongoing wave of attacks on bail reforms, would be a win for the for-profit bail industry: bounty hunters and the Wall Street insurers that back them all profit from the United States’ unique bail bonds system, in which poor people facing criminal charges pay bail agents to post their bail and get out of jail as they await trial.
. . .
Charitable bail funds attempt to circumvent the bail bonds system by posting bail for people who cannot afford it. In doing so, they help disrupt what civil rights activists call a “two-tiered” system of justice, in which wealthy people can easily post bail and escape a life-altering jail sentence as their court cases progress, while poor people cannot. By circumventing the bail bond system, bail funds pose a threat to the profits of bail agents and the insurers that underwrite them. As some states have ended cash bail and bail funds have grown, fueled by a surge of donations in the wake of the 2020 protests over George Floyd’s murder, the industry is finding new ways to push back.
It’s all pretty despicable.
darryll k. jones