(Photo: wp paarz/Flickr)

There seems to be a growing gulf between the will of the American people and the function of our criminal justice system. Though more Americans oppose the death penalty today than at any other time in the last four decades, capital punishment persists as a primary cog in the penal system. And while at least 77 percent of Americans oppose mandatory minimum sentencing for non-violent drug offenses, prisons in at least 26 states remain overcrowded, largely with inmates imprisoned long term for non-violent crimes.

This disconnect may exist, in part, because there are so few points within the criminal justice process (outside of jury deliberation) where the general public can intervene. But in a paper in the Michigan Law Review, Jocelyn Simonson, an assistant professor at Brooklyn Law School, argues that a trend of community groups using funds to post bail for strangers who can’t do so themselves has the potential to force real change in how our justice system views the constitutionality of money bail and its future use.

When community bail funds get involved, Simonson argues, the act of posting bail “becomes a form of on-the-ground resistance to the workings of the criminal justice system.” Simonson calls this “bail nullification,” equating community bail funds with the act of jury nullification—when jurors choose to acquit a defendant who is legally guilty, to make a point about the legitimacy of the law or a larger injustice within the system.

Originally, bail was a process used by the justice system to facilitate the release of the accused, who are presumed innocent until proven otherwise. But there are often conditions for bail, and, since the 20th century, those conditions have often been monetary. Courts give those criminal defendants awaiting trial their freedom in exchange for a fee, which ensured that the accused would return to court when called, or forfeit said bail money. Nearly half a million people in the United States are behind bars pre-trial because they haven’t posted bail, mostly because they just can’t afford to. Hundreds of thousands of defendants, a disproportionate number of them minorities, are being held on $500 bail or less.

Last year, Maura Ewing wrote about a 43-year-old woman named Diva who couldn’t make the $1,000 bail set for the charges of menacing and harassment that she faced without the help of the Bronx Freedom Fund, a the community fund like those Simonson writes about in her paper. (Ultimately, Diva was not convicted of any crime.)

“This is the problem that the Fund is working against: a system that keeps people in jail not because they are likely to flee from trial, but because they can’t afford bail,” Ewing wrote. “In other words, a system that punishes people for being poor.”

As the system functions now, the outcome of an individual’s case is governed by the discretionary decisions of justice officials—from the law enforcement officer’s decision about whether or not to make an arrest, to a prosecutor’s decision on charges, to a judge, magistrate, or bail commissioner’s decision about bail. Research shows that, in the current criminal justice system where less than 5 percent of criminal cases make it to trial, bail decisions in particular have an outsized effect on case outcomes. As Ewing wrote:

Without access to bail funds, those accused of minor crimes often plead guilty to get out of jail — and take the strike on their criminal record. “There is nothing as powerful as the desire to go home,” says Scott Hechinger, a public defender with the Brooklyn Defender Services. In 2013, his firm found that those of its clients who were held in jail without access to bail money pled guilty 92 percent of the time, versus just 40 percent for those who awaited trial at home.

Prosecutors have “an incentive to request high bail to ensure leverage over plea bargaining negotiations,” Simonson argues. Detention, even for just a few days, can cause people to lose their jobs, their homes, and custody of their children. That makes a guilty plea a lot more appealing. Judges often set high bail knowing an indigent defendant won’t be able to post it.

“The bail is really being set to keep the person in custody. You have to kind of concede that,” Judge W. Kent Hamlin of Superior Court in Fresno County, California, told the New York Times in 2015. “It’s not supposed to be that; it’s supposed to guarantee their appearance in court. They’re innocent until proven guilty, but the bail system assumes they’re guilty.”

Judges often cite “community safety” when they use the bail system to keep defendants detained before trial, pitting the public against defendants. But the research suggests that pre-trial detention actually increases crime (as well as a defendant’s chance of conviction, and the length of the sentence). That dichotomy breaks down, however, when community bail funds get involved. “When a ‘community’ group posts bail, it calls into question the widespread assumption that the community and the defendant sit on opposite sides of a scale of justice,” Simonson writes.

It also brings up questions about the constitutionality of money bonds. “[B]y paying money bail for defendants who cannot afford it, community bail funds highlight the extent to which the system of money bail ties a defendant’s economic status to the outcome of her case—an insight that implicates the Equal Protection Clause,” Simonson writes.

While community bail funds have long existed in informal formats, such as church collections, it’s only in the last five years that they have organized and really proliferated. The Bronx Freedom Fund has been replicated in Massachusetts, Connecticut, Brooklyn, and Nashville, and funds targeting specific groups have cropped up elsewhere. In Baltimore, for example, the Baltimore Protesters Bail Bond Fund posts bail for those arrested while protesting violence; there are similar funds in Oakland and Baton Rouge. One fund in Queens, New York, helps transgender women of color.

The success of community bail funds—over 90 percent of recipients return to court—undermines the original conceit of money bail: that only an economic threat to a close friend or relative is enough of an incentive to bring someone back to court. Unlike jury nullification, in which juror deliberations are kept secret, these community funds can be open about their mission to transform the criminal justice system, thus having an effect beyond individual cases.

“The fact that institutional actors bristle — and retaliate — when community bail funds post bail demonstrates the power this act of resistance wields,” Simonson writes. One judge, upset that the Bronx Freedom Fund had posted the $3,000 bail for an indigent defendant in his court, launched an investigation of the fund, and temporarily shut it down for violating the state’s insurance laws (which were eventually changed).

“Even though bail had served its purpose — the defendant appeared in court voluntarily, and had harmed no one in the interim — the presiding judge was irate,” Simonson writes. “The bail fund had eviscerated the judicial power to incarcerate a defendant pending trial.”