Cashed Out
Reason magazine|October 2021
What happens when a community bail fund stops paying bail and starts trying to abolish it?
By Leah Libresco Sargeant

Revolving bail funds are the closest thing there is in activism to a perpetual motion machine. A bail fund steps in on behalf of a defendant to pay the bail bond set by a court. With bail paid, arrestees can go home, keep their jobs, and resist pressure to accept a plea deal in order to leave jail. As long as the defendants show up for their trial dates, the bail money is returned to the fund and can be used again and again and again, as long as bail exists.

That last is the reason that the Brooklyn Community Bail Fund (BCBF) blew up its own successful model in 2019. The organization announced it would stop paying individual criminal bails (though it would continue to pay immigrant detention bonds). The new focus would be ending cash bail, not ameliorating its effects.

New York is the only state to explicitly recognize and regulate nonprofit bail funds. The 2012 Charitable Bail Act codified how such groups could interact with the criminal justice system. Bail payers must be licensed by the state as bail bond agents, passing background checks and licensing exams. They may pay up to $2,000 worth of bail for defendants and may only assist defendants charged with misdemeanors, not felonies.

That means bail funds could not have paid the full bail of Kalief Browder, a 16-year-old boy charged with stealing a backpack in 2010, whose bail was set at $3,000. Unable to pay, he spent three years at Rikers Island awaiting trial, approximately two years of it in solitary confinement. He committed suicide after his release.

In 2018, when I began interviewing BCBF employees about their work, I asked Peter Goldberg, then the executive director, whether he hoped to see the Charitable Bail Act expanded so the fund could assist a broader range of people. He said no: The goal wasn’t to pay more bails. “The worst thing we could do is to normalize the system,” he told me. “Bail funds are not a solution to cash bail. We’re working to put ourselves out of business.”

Still, the case for the basic function of paying bail was compelling. “Many donors understand that if their son or daughter found themselves in this position—there’s no chance they’d spend the night in jail,” says Melissa Benson, at the time the BCBF’s director of development. Bail funds even attracted attention and money from the effective altruist movement, a constellation of individual donors and grant-making institutions who try to maximize the impact of their charitable giving. Most effective altruist causes are focused on global health and poverty—it’s easiest to quantify the value of malaria nets or direct cash transfers. The more you focus on the poorest and most vulnerable, the more cheaply you can save lives.

The revolving structure of a bail fund was part of the appeal for these donors. The money they give doesn’t get used up. As the Open Philanthropy Project noted in 2015, “the vast majority...of dollars donated revolves to help multiple cases and lives.” The next year, the Open Philanthropy Project directed a $404,800 grant to the BCBF. Buy a malaria net and the money can’t be used again, but bail fund money keeps working, bailing out prisoner after prisoner.

The Brooklyn Community Bail Fund is one of many such funds across the country. The Minnesota Freedom Fund and similar organizations attracted national attention after the death of George Floyd in 2020, with politicians such as then– California Sen. Kamala Harris promoting them as a way to support protesters. (In practice, protesters were a small share of the people assisted by these funds, whose biggest impact was for people who were accused of committing unnewsworthy crimes.)

Bail funds had looked like a way of outsmarting the system: Courts could keep setting bail, but a bail fund operated as a kind of nullification of the prosecutor’s recommendation and the judge’s decision. The revolving money seemed to many bail fund donors, including me, like a way of turning tragedy into farce. But the BCBF team had come to believe they’d essentially been conscripted into the carceral system they wanted to dismantle.

‘YOU CAN’T LET IT CONTINUE’

IN THE RUN-UP to the 2019 passage of bail reform in New York, the BCBF’s Carl Hamad-Lipscombe was working as a public defender. He heard legislators argue that abolishing cash bail was unnecessary, because groups like the Brooklyn Community Bail Fund solved the problem of bail already. “We were a crutch, holding up this situation we don’t believe in,” he said. Bail funds let politicians get the softer outcome they wanted without having to put their names to an attempt to change the law. The BCBF’s solution was to force lawmakers to confront the costs of the current system.

Goldberg believes that New York already has the tools it needs to do away with cash bail. At least on paper, he says, “New York already has an incredibly progressive bail statute.” Judges are free to choose from nine different forms of bail, but overwhelmingly, they use only two: cash bail and insurance company bonds. Courts also have the option to impose nonmonetary restrictions such as electronic monitoring, pretrial support programs, or a requirement that defendants give up their access to guns. Switching to one of these options requires only political will, not statutory permission.

No matter what, courts are supposed to choose the least restrictive means required to get a defendant to return for trial. When the overwhelming majority of defendants whose bail is paid by a bail fund—and who thus have none of their own money at stake—show up at trial, it undermines the premise that cash bail was the least-restrictive option available. Those defendants didn’t need to have money on the line in order to come back.

The BCBF keeps track of what options are available through its CourtWatch program, overseen for a time by Hamad-Lipscombe, who served as the fund’s director of advocacy and policy before succeeding Goldberg as executive director in June 2021. In non-pandemic times, court watchers trained through the program sit in courtrooms and tabulate data on arraignments and bails. They show up in bright yellow shirts, a visible reminder of their presence to everyone in the courtroom.

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