Legislative attack on bail funds threatens lifeline for poorest Americans

A misguided piece of legislation is poised to threaten vital assistance for low-income Americans who cannot afford bail, subjecting them to jail while awaiting trial, even though they are presumed innocent under the law. The legislation, which passed the House last week, effectively weaponizes the federal insurance fraud statute to target organizations that provide free bail assistance — including faith groups and nonprofits like The Bail Project. This attack threatens the very lifeline we provide to thousands of low-income Americans every year.

The legislation amends the federal fraud statute to define “the business of insurance” to include posting monetary bail, effectively criminalizing anyone — including faith groups, charitable bail funds, community organizations and any individual participating in their efforts — if they provide bail assistance but don’t adhere to the same regulations that govern for-profit commercial bail bond agencies. This bill is a poorly designed piece of legislation that does not address public safety or economic inequity, but instead strengthens the for-profit bail bond industry, which profits off of low-income people.

But what we do is very different from commercial bail bond agents. 

Commercial bail agents, who in some cases have arresting authority, charge people non-refundable fees to access specialty insurance products and services, which can be as much as 10 percent of the total bond amount. Agreeing to work with a commercial bail agent may require a mother or grandmother to sign a civil contract with onerous lending terms, including hidden fines and fees, and provisions where they agree to be surveilled and tracked. Family members sometimes sign over the deeds to their homes and the titles to their cars so they can bring their loved one home. 

A charitable bail organization could not be more dissimilar. We’re a nonprofit, and our services are 100 percent free. We don’t utilize insurance products, nor do we work with dangerous bounty hunters. Unlike commercial bail bond agencies, we provide people with supportive services, including court notifications, free transportation to court, and assistance navigating crucial social services and community resources for no charge.

Over 460,000 Americans are in jail without conviction often because they simply cannot afford bail. Our system promises “Equal Justice Under Law,” but how can justice be equal if the way you’re treated by the courts depends on how much money you have? If you are wealthy enough, like Bernie Madoff or Sam Bankman-Fried , you can buy your way out and walk free while your case is decided.

At a hearing on his bill, the sponsor, Rep. Scott Fitzgerald (R-Wis.), claimed that we “operate in the shadows” and our “donations come with little to no scrutiny.” That is not accurate. As a 501(c)(3) organization, The Bail Project is subject to regular monitoring and oversight by the IRS. Our donations come from everyday Americans who believe the presumption of innocence should not depend on how much money a person has. And our work only begins after a judge has determined that a person can be safely released if they pay bail — meaning, the only thing between the individuals we serve and their pretrial freedom is the size of their bank account. 

Adding more layers to government bureaucracy will do nothing to make our communities safer, but it will make it harder for The Bail Project to help those in need. Fitzgerald also said he wants to “keep violent offenders off our streets.” So do we. But safety, not wealth, should determine who is detained pretrial.

Most Americans cannot afford an emergency expense over $1,000. Americans who cannot afford bail may lose their job or their home, lose access to critical medication, and their children may wind up in foster care. Without our intervention, many of our clients, who are legally innocent people, would have felt pressure to plead guilty, or languished inside dangerous jails for years. 

There are ways to safely improve our pretrial system without cash bail. Look, for example, at Illinois’s Pretrial Fairness Act, which replaced cash bail with a model where due process determines who is released pretrial. Under the Illinois law, judges take time to consider non-financial conditions for release — and in cases where that won’t suffice, they can order detention. As a result of the law, not only are more people showing up to court, but violent crimes and property crimes have dropped by 12 percent. In Harris County, Texas, misdemeanors have dropped by 20 percent while the number of people arrested again for new misdemeanors has remained the same since 2015.

Our work further demonstrates that effective and equitable alternatives to cash bail are possible. Since 2018, we have helped over 31,000 low-income Americans who have returned to over 91 percent of their court dates even though they had no financial stake. This is powerful evidence that bail is not necessary to incentivize return to court. 

But our work also threatens the business model of the multi-billion dollar bail bond industry, which is why its lobby has been on a crusade to restrict charitable bail and expand cash bail systems. Our services not only spare thousands from unnecessary incarceration, but also lend critical evidence to a movement that is about so much more than money alone. The Bail Project will keep making sure that help is there when people need it, until there is no more reason to.

David Gaspar is the chief executive officer of The Bail Project, which provides free bail assistance to thousands of low-income Americans every year.