Unregulated Charitable Bail Funds Upending the Criminal Justice System and Federal Immigration In Wake of Anti-Criminal Justice Momentum

While Minneapolis simply considers eliminating the police department altogether, the unregulated Minnesota Freedom Fund is not so quietly making their mark on criminal justice: wealthy donors are giving millions of dollars to disrupt the existing bail system – an effort to circumvent the purpose of bail in holding defendants accountable while on pretrial and replace it with a system where the government picks who stays in jail.

According to these wealthy donors and the Minnesota Freedom Fund, what they call the “cash bail system” is unfair, so you guessed it—they are simply buying their collective way out of it by posting bail for anyone and everyone – regardless of charge, criminal history, ties to the community, or likelihood of appearing to court.  Their purpose – to upend the accountable release of defendants and revert to their alternative government power universe based on pretrial risk assessment algorithms, which have been shown to be ineffective at predicting risk at best with a baked in permanent imposition of past societal bias at worse.

Unlike our existing constitutional right to bail which, while not absolute, is pretty close, the new system trusts the government to decarcerate jails, a trend which, of course, we already know the result of from a generation ago: the federal government went from a 24% pretrial incarceration rate to 72% today all because “cash bail” isn’t fair.

Based in Minneapolis, the Minnesota Freedom Fund received over $20 million in contributions in less than a week after the George Floyd incident took place.  The fund is going to use the money to bail out criminal defendants and also to bail out those held in federal immigration custody.  To say that this will disturb the existing balance judges strike between the right to bail, risk of non-appearance and risk to public safety would be the understatement of the century.  Also, it is important to realize that for the Fund to actually post bonds, they will need to post bonds in some pretty severe cases.

Bail Funds Nationally – Unregulated and Unchecked

“The Bail Project,” the most recognized organization on the national scene to bail people out, has used their tug at the heartstring approach to raise millions –  having now posted bail for over 10,000 defendants nationally.  Their success in crowdfunding has led the effort to de-justify the system.  Do they hold these defendants accountable to appear in court?  Do they even have the authority to do so?  No and No.  Do they disclose their funding sources and are they regulated by the state?  No and No.  Does the Bail Project operate in your jurisdiction?  You can check here.

Despite all of this, the most concerning issue is that none of these funds, with the exception of the funds in New York State, are regulated by any entity.  There is no requirement that the funds, like in New York, are required to disclose who donates to such funds.  What does this mean?  Foreign governments could donate to the Minnesota Freedom Fund or any other fund to bail out a person or persons they would like sprung from jail or from detention by federal immigration authorities.  Yes, immigration too.  So could George Soros, John Arnold, or anyone else.  And, no one would ever know.  In addition, organized crime could easily set up and participate in such funds.  There are no background check requirements for anyone doing a charitable bail fund, even though it is defined as engaging in the bail business except not for profit.  Which, arguably, means that the federal background check requirements for transacting insurance business would apply.

Meanwhile, the federal and state governments are simply allowing these “bail disruptors” to do their “disrupting” without any transparency or oversight.  No reporting is required.  No licensure is needed.  No background checks.  No regulation.  Nothing.

In contrast, New York State wisely regulated charitable bail funds through the New York Charitable Bail Act a few years back to make sure they serve specific key functions: (1) they target low-level matters, misdemeanors only, and by capping the bonds that can be posted by a charity at $2,000 or under; (2) to require the person to be indigent, i.e., they are financially unable to post bond; (3) appropriate background checks; and, (4) to make sure that there is transparency by requiring disclosure of donors, reporting, etc.

RELATED:  New York Guide to Charitable Bail Organizations

Every jurisdiction in the United States should be looking to have some transparency and oversight of this process.  We cannot allow these “disruptors” to expand their footprint with dark money designed specifically to cause harm to the criminal justice system.  Under the guise of “fairness,” these funds are exploiting the bail system by pushing to eliminate the right to bail and transfer the power to the government to decide who is in and who is out.

In the end, we can’t think that having the rule of law and society simply fall apart is the answer to all of this.  If the disruptors have anything to say it about it, it certainly will be the answer, particularly as long as state legislators and local officials turn the other way and let this continue to happen.