The Bail Fund Moment

Every donation to a bail fund contributes to an alternative vision of justice by treating bail not as a neutral threshold an incarcerated person has to meet before they’re allowed to return to their community, but as an obstacle to justice that can only be resisted collectively. When a fund pays bail, it declares that pretrial detention is cruel and immoral, and that keeping someone locked up doesn’t automatically make their neighbors “safer.”

Reclaim the neighborhood, reclaim community, reclaim public safety

Photograph by Oliver Hernandez.

Over the past few weeks, more than three million people have donated to bail funds. That’s more than three million individual transactions, many of them via Venmo and other payment processors more frequently used for rent payments to roommates than acts of collective resistance to the carceral state. As of this writing, there are at least ninety-eight groups in the United States actively paying bail for strangers, many of them staffed by volunteers trying to keep up with the extraordinary surge of donations. As the focus of national attention and horror at the unceasing, racialized violence of policing has shifted from Minneapolis, to Louisville, to New York, to Atlanta, and back again, donations to local bail funds have followed—a new and only modestly lagging indicator of public outrage.

A bail fund is straightforward and even elegant as an idea, a revolving fund of money used to continually free people who are jailed because of their poverty. The concept grows out of a broad understanding of an unjust and unequal system. Across the United States, in thousands of police stations and courthouses, people arrested and accused of actions ranging from spitting to marijuana possession to assault are condemned to pretrial confinement in local jails. Release is contingent on bail set by judges or magistrates, ostensibly set to ensure that a person comes back to court and does not engage in illegal acts after release. Bail amounts, imposed largely at the discretion of these state actors, are often brutally and deliberately punitive, ranging from as low as five dollars to as high as millions. Many cannot pay them—not even the smallest amounts; others can only do so by borrowing from bail bond agents at exploitative, even catastrophic rates. Those unable to post bail must endure the violence of jails and risk losing jobs, housing, and custody of their children; no matter the facts of the case, the incentive for them to plead guilty is strong. More than four hundred thousand people are incarcerated pretrial at any given time, an amount that has more than doubled over the past fifteen years, and the racial disparities are glaring: 43 percent of people held in cages until their cases end—whether by trial, guilty plea, or dismissal—are Black, compared to only 12.2 percent of the population.

A bail fund intervenes, financially, right after bail has been set, by paying bail for strangers.  Practically, this can involve coordinating with the families of those who are incarcerated, waiting for checks to clear or magistrates to appear, negotiating and even pleading with clerks or sheriffs, and making sure that people are supported, and shown love, upon release. It is a complicated and stressful job. And it is also a long game: bail funds work gradually to shift our understanding of how communities can support each other. Every donation to a bail fund contributes to an alternative vision of justice by treating bail not as a neutral threshold an incarcerated person has to meet before they’re allowed to return to their community, but as an obstacle to justice that can only be resisted collectively. When a fund pays bail, it declares that pretrial detention is cruel and immoral, and that keeping someone locked up doesn’t automatically make their neighbors “safer.”

Though bail funds have only emerged as a widespread tactic of change over the past decade, they have been around, in various forms, for much longer. Community groups and churches have long had a practice of passing a hat to collect funds to help people with bail and legal defense, and organized bail funds have existed at least since the 1920s, when the ACLU began a National Bail Fund in response to anti-communist prosecutions. For Black people in America, the tradition of pooling money to buy someone’s freedom has even deeper roots. As the Movement for Black Lives’ Transformative Bail Reform Curriculum explains, money bail has antecedents as far back as the transatlantic slave trade, when, in certain specific circumstances, enslaved people were able to buy their freedom and join together to buy the freedom of others.1 The pooling of resources for liberation now has a modern analogue: a fund that is able to raise money online, often through small donations, from anywhere in the world, and amass it to free strangers from their cells.

Every bail fund is different in its goals and orientations. Some have fixed guidelines for prioritizing cases that range from how vulnerable a person is to violence in jail, to the neighborhood where they live, to their identity, to the amount of bail, to the charges they’re facing. Some funds bail out people associated with certain movements. All bail funds bail out as many people as they can within their own capacity, budgetary, and legal constraints. In 2016, there were fewer than twenty organized bail funds operating publicly in the United States. This included funds set up in the wake of the Black Lives Matter movement, which posted bail for protesters, as well as standalone charitable bail funds, like the Bronx Freedom Fund and the Brooklyn Community Bail Fund. Around the same time, Black-led grassroots organizations also started to engage more frequently in large, targeted bailouts, such as the “Black Mamas Bail Outs,” which began in 2017 and work to free black mothers from jail every Mother’s Day. Mary Hooks, co-Director of Southerners on New Ground (SONG) and one of the organizers who initially conceived of these bailouts, has explained that “in a spirit in which our ancestors bought each other’s freedom, we said, ‘we can do that and remind ourselves of what we’ve done for each other before.’”

By early 2020, the number of active bail funds operating year-round had grown to over sixty. Some of these are explicitly abolitionist bail funds, many of them part of the National Bail Fund Network or the National Bailout Collective, groups that work alongside other grassroots organizations to push back against not just money bail, but also incarceration and surveillance more broadly. Writing earlier this year, four leaders of bail funds in Chicago, Colorado, Connecticut, and Massachusetts described money bail as “merely one piece of a much larger system of racialized social control.”2 Bail funds, they wrote, thus serve as “organizing hubs in community and key players in the larger movement for prison abolition,” alongside other tactics of collective resistance such as courtwatching, copwatching, participatory defense, and mutual aid. Abolitionist bail funds aim to shift the focus of the injustice of bail away from individual criminal cases and toward the long-term extraction of wealth from communities—extraction that also happens via immigration bond, the equivalent to money bail in immigration court, and the ubiquitous fines and fees that accompany every encounter with the criminal process. The goal is to reclaim the neighborhood as a vital location not for state extraction, but for state investment in collaborative approaches to safety and mutual aid. Reclaim the neighborhood, reclaim community, reclaim public safety: these conceptual goals are entangled with the day-to-day work of freeing people from incarceration.

To have followed the Massachusetts Bail Fund on Twitter during the first two weeks of June was to see just how profound all these connections really are, and how much bail funds can clarify them. The Bail Fund took part in protests outside of local jails and fundraisers for a house for and run by formerly incarcerated women; supported Black and brown-led campaigns to defund the police and jails alike; and spent hours in support of protesters, waiting in the middle of the night for bail commissioners or faxes with case information from clerks that sometimes did not appear. At the center of all this is the bail fund’s longstanding call to #FreeThemAll, always alongside and with the long-term organizing efforts of local Black- and brown-led groups.

Meanwhile, in Denver, the executive director of the Colorado Freedom Fund, Elisabeth Epps, was recently gassed and shot in the leg with a rubber bullet by police officers while protesting. One week later she played an active part in pushing the Colorado State Legislature to pass a police accountability bill. Throughout all this, the fund continues to post bail, not just for protesters but for people across Colorado subjected to the bail regime, which the Fund refers to—clarifyingly—as “ransom.” In a tweet on June 4, Epps posted a receipt for five dollars from Denver’s criminal court, writing:

Once again, in addition to thousands of dollars in higher bonds, yesterday Colorado Freedom Fund paid another $5 ransom. FIVE U.S. DOLLARS. Imagine a city willing to pay ~$100/day to cage someone over $5 cash bail. No need to imagine. Denver does it.3

Four days later, Epps wrote that the fund had paid a $50,000 ransom for a Latina woman. In the interim, the fund’s co-director, Eva Frickle, described paying so many ransoms that her credit card put a stop on her card. In Massachusetts, Colorado, and across the country, the work is constant and ongoing.

For new bail funds formed in the wake of the Covid crisis and the recent uprising, there has been little time for reflection and, instead, only the urgency of action and intervention. But funds that have been operating for longer bring to the table not only their practical experience, but also the political analysis that they have developed through their collaborative work. Take the Chicago Community Bond Fund, which has become a leader in local and state-wide organizing efforts to end money bond and to recognize the punitive and expensive nature of substitutes like electronic monitoring or pretrial services. The title of one of their reports is a good shorthand for the work many bail funds are doing nationwide: “Money for Communities, Not Cages.” This is the slow, long-term work of bail funds, laying the groundwork in solidarity with Black-led organizing efforts for the idea of divesting from the carceral state and investing instead in communities, an idea that we now see rising into national consciousness via the phrase “Defund the Police.”

In the leading Supreme Court case on bail and pretrial detention, United States v. Salerno (1987), the Court states explicitly that a judge must balance an accused person’s interest in liberty against the community’s interest in safety. Writing for the Court, Chief Justice Rehnquist said that a decision to set bail and then detain someone accused of a crime before conviction does not violate due process if a legitimate government interest, such as “preventing danger to the community,” outweighs the sole factor on the “other side of the scale . . . the individual’s strong interest in liberty.” This was, and is, the standard legal understanding. Along similar lines, elected officials also rely on the concept of “public safety” to justify their hesitation to support bail reform, or to release people from jails and prisons.

In the past, I have described bail funds as engaging in a kind of communal nullification, parallel to the traditional phenomenon of jury nullification.4 By that I mean that the act of posting bail for a stranger functions as a rejection of Rehnquist’s notion that it is legitimate to incarcerate someone before trial based on abstract notions of “public safety” or “preventing danger to the community.” Bail funds clarify the violence and death that can emerge from these official interpretations. According to the counter-logic that emerges from the work of a bail fund, liberty becomes more than an individual interest—it becomes a communal interest. It is clearly the case, after all, that many community members feel safer not when their loved ones are subject to the cruelty of incarceration, but when they’re at home and able to keep their jobs and care for their children.

The Covid crisis has only exacerbated the tensions over ideological questions of “public safety” and the “community.” Bail funds and their coalition partners have consistently demanded that state actors recognize the public health and safety interests in releasing people from “petri dishes” of infection. Those actors have largely ignored these pleas; at best, they’ve failed to fully concede to them, grasping at the potential “public safety risk” of releasing someone rather than the pressing, critical risk of death from Covid in prison. In a sweepingly cruel executive order published in March, Texas governor Greg Abbott declared that localities could no longer release certain classes of incarcerated people from jails and prisons for public health reasons during Covid; he declared the order “needed to avoid disparate release policies or practices that may endanger the public safety of Texans.” Not only is “public safety” here only on the side of incarceration; the term “Texans” clearly does not include Texans whom the state has put in jails and prisons. Mayor Bill de Blasio of New York City reiterated Rehnquist’s balancing scale more gently during this crisis, saying, “We need to find a balance between the humanitarian need to get everyone that we can get appropriately out of our jail system out and be mindful that there are also real public safety concerns here.” The end result is the same: inaction, infection, and the triumph of the status quo.

But it’s clear that for many Americans, the status quo makes much less sense than it did even a couple of months ago. As invigorating as it is, the current surge of support for bail funds begs the question of why this enthusiasm was absent just weeks earlier, when these same funds were desperately highlighting rampant disease inside jails and prisons and trying to raise money to free people from literal death sentences during the pandemic. The Massachusetts Bail Fund’s Twitter account had a different tenor then. On March 17, it posted the following in support of a letter to Governor Baker: “We are tired and enraged that nobody in a position of power lifted a FINGER to get ppl out of jails & prisons.” That it was protests that brought national attention to bail funds rather than the Covid crisis in jails and prisons tells us less about bail funds and more about our collective denial of the everyday devastation of incarceration and its impact on Black and brown bodies. It is a denial too many are willing to partake in until video footage and massive protests make it simply unignorable.

It is worth being clear about the reach and potential of bail funds. They are not, and cannot be, the answer to dismantling the institutions that create and sustain mass incarceration. Nor are they foolproof, either as mechanism or symbol. Bail funds can run the danger of legitimating the institution of money bail by becoming regular players in a stubbornly unchanging system—a danger that has led some funds, such as the Brooklyn Community Bail Fund, to  stop paying bail in criminal court and shift to other tactics of change. Their success can also focus reformers too narrowly on the specific injustice of money bail without seeing the larger picture. And in the eyes of directly impacted groups, the oversimplified demand to end money bail can, in turn, lead to new laws that legitimize pretrial incarceration based on algorithmic determinations. These algorithms often use measurements of “risk” or “dangerousness” that naturalize structural inequalities by using seemingly neutral factors that are actually proxies for race and marginalization.

All these ever-present dangers are only overcome with constant diligence and attention to political education, messaging, and collaboration with those closest to the problem. Working slowly and deliberately, bail funds help clarify the continuity between the different moments of violence along the carceral continuum. The work of bail funds takes time, and even remarkable generosity on the part of donors can’t necessarily accelerate that work. Not all at once.

Many bail funds do not need more money right now (though some do), but what they all ask of us is to join them in the collective work of reimagining how we can all live together in safety and security, whether you identify as an abolitionist or not. Malik Neal, director of the Philadelphia Bail Fund, put it this way in a recent interview with Slate: “Donating to bail funds is important, but even more important is challenging the very system that makes a bail fund necessary. I would ask folks to join in that fight as well.” As the nation and the world formally “re-open” from quarantine, bail funds beg of us a different kind of openness, to new collective understandings of how we can support each other and live together, and to a new determination to recognize the deep forms of violence in each and every corner of the carceral state.

  1. https://policy.m4bl.org/wp-content/uploads/2016/07/Transformative-Bail-Reform-7.pdf 

  2. https://lpeblog.org/2020/02/12/moving-from-ending-money-bail-to-demanding-pretrial-freedom/ 

  3. https://twitter.com/elisabeth/status/1268702166287613953 

  4. http://michiganlawreview.org/wp-content/uploads/2017/03/115MichLRev585_Simonson.pdf 

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