When a person who has been charged with a crime is eligible for release but cannot afford cash bail, they will generally remain in prison until they are sentenced or released. Unless someone pays on their behalf.
One option is to enlist the help of a personal bailiff to pay cash to the court to be used as a guarantee that a defendant will return for hearing. But bailiffs charge hefty fees, and many engage in abusive, or even criminal, practices.
A surety fund, which collects money from donors to pay collateral for those who cannot afford it, is a better option.
These funds can be relatively large. The Minnesota Freedom Fund received more than US$30 million in donations from more than 900,000 donors over a period of four days to drive out protesters who responded to the killing of George Floyd in 2020. Others are much smaller and operate through crowdfunding platforms such as GoFundMe. Individual donations also range widely: gifts for the bailiff project, for example, range from a few dollars to millions.
We, two social scientists, are describing what is sometimes called a “community bailout fund”. More than 90 of these nonprofits are affiliated with the National Bell Fund Network, which works as part of a broader strategy to end pre-trial detentions.
Bail is only in the form of a guarantee that an accused person will appear in court. Aside from court fees, most of the money is usually repaid after all conditions are met. This means that these funds get back the bulk of what they spend to get people out of jail, and the same money can cover someone else’s bail. Recycles most of its donations after paying bail money, ie potential court fees.
Bail funds are often local and may specialize in helping a specific community, as in the case of the LGBTQ Freedom Fund, Black Lives Matter Oklahoma, Repro Legal Defense Fund, Midwest Immigration Bond Fund, and the National Sex Worker Bail Fund. The National Black Mamas bailout pays cash bail owed by Black caregivers around Mother’s Day, and several mass bailout initiatives exist for Juneteenth and Father’s Day as well.
The practice of using money collectively to free loved ones and friends has a long history in the United States that began in the days of slavery. Before the Civil War, black communities raised money to buy themselves and their families’ liberties.
One of the first major bailouts emerged in 1920, when the American Civil Liberties Union established one in response to anti-communist lawsuits known as the “Red Scare”. Other bailiffs arose in subsequent decades, often led by civil rights and anti-war activists.
Why does the security deposit matter?
Of the more than 650,000 people jailed in the US, more than 80% have not been convicted and are presumed innocent, but cannot get bail.
Helping people bail out is important because it means they can return home and stay at a job or school. They are also less likely to be pressured into accepting a plea deal, in which they plead guilty to a reduced fee for a shorter time of service, whether or not they have committed the alleged crime.
The average amount for bail is $10,000. But most people who can’t pay bail are living well below the poverty line – defined by the government as being in a family of four who make less than $27,750 a year.
People of color are more likely than white people to be arrested, unable to pay bail and charge higher bail and fee amounts. They are more likely to receive biased bail decisions, and more likely to stay on bail, spend time in prison, and eventually be imprisoned.
Bail money can help alleviate these problems, but addressing these serious challenges will require profound reform of the entire US criminal legal system.