Bond Funds Are Not the Answer

by Eric Granof

Over the past many years, the criminal justice system has looked for ways to simplify release.  From taxpayer funded pretrial services to 10% cash bonds to pretrial risk assessment tools to the outright elimination of bail and simply releasing defendants, the criminal justice system has been willing to look at many different approaches to release.  But there is a reason why the private bail industry has been around for over 200 years and that it is because the facts document again and again that it is the best method of getting people to court and in keeping the criminal justice system moving forward to get cases resolved and bring resolution to crime victims.  

This past year, once again another new approach to release has been initiated.  This new approach is not legislative in nature.  It is not even designed to improve or reform the bail system.  It has one goal and one goal only, to disrupt and dismantle the system.  This new approach to release is what is known as “Bail Funds.”

While bail funds are not a new phenomenon, they have not grown in prominence until recently.  Their beginnings go back to the early 20th century where activists pooled their money together to bail out protestors who were arrested during incidents of civil unrest.  The thinking was that they can just use the funds over and over again, because defendants will go to court and they will get the money back to bail out the next protester.  But as history has proven, it is never that simple, and these early bail funds had a short life because of that.  As soon as someone failed to appear, so did the money and so did the bail fund.

Over the next 100 years, from the early 1920s to today, bail funds have came and went with the ebbs and flows of civil and social unrest.  Appearing suddenly for purposes of bailing out protestors and activists and disappearing even faster when they ran out of money.  And that has always been the Achilles heel for bail funds…the money.  They have never been able to sustain incoming funding at a rate that out paces the outgoing payments for court fees, costs, and forfeitures.  Even as recently as last September, one of the most well-known bail funds, the Brooklyn Community Bail Fund, stated that they were going to stop bailing people out (https://theappeal.org/nations-largest-bail-fund-plans-to-stop-bailing-people-out-of-jail/?fbclid=IwAR01PeDRCLi0wIQezbgcNxOwKoborFK11RJbumT3M5Dd1PrjpkpoLtvKOgY).  They stated that the decision was based on their desire to stop “propping up” an unfair system by participating in it, but the reality was that increased regulation and accountability of the fund (leading to less money) were more probable reasons.

In April of this year, Bail Funds received a steroid shot of publicity and support when George Floyd was allegedly suffocated by four law enforcement officers in Minnesota.  Protests broke out across the country, leading to many arrests.  Overnight the Minnesota Freedom Fund and other funds across the country received donations of millions of dollars.  From celebrities to politicians to athletes, everyone jumped on the social justice bandwagon and the real threat of bail funds was created.  No longer was money an issue.  Only having enough defendants to bail out was going to be their new limitation.  And that is exactly what happened.  Bail funds had millions of dollars at their disposal but had no protestors to bail out.  So, what did they do?  They call it disrupting the system, others may call it damaging the system.  They started releasing anyone and everyone they could, regardless of the charge or the criminal history.  Here are just a few examples:

• Jaleel Stallings, First degree assault, shooting at a SWAT member, $75,000 bond

• Darnika Floyd, Second Degree Murder, $100,000 bond

• Christopher Boswell, Convicted rapist, charges of sexual assault and kidnapping $350,000 bond.

What makes the release of these types of individuals so dangerous is that the stated purpose of these bail funds is to release low level, misdemeanor, first time offenders who were too poor to afford bail themselves.  As you can see, these individuals identified above are not low level offenders.  There are hard core, dangerous repeat offenders that are now being released for FREE thanks to everyone who decided to virtue signal and donate blindly to a bail fund.

Moving forward, bail funds are going to be something that the criminal justice system must address.  These entities are not only disrupting the criminal justice system, but they are putting our communities and law enforcement in danger on a daily basis.  These are some of the issues with bail funds…

1. Lack of Regulation/Oversight

Other than some recent legislation in New York, bail funds are pretty much unregulated across the country.  They operate with zero oversight and accountability by any government or regulatory agency.  Unlike bail agents, who must be licensed and operate within a strict set of rules, bail funds are free to conduct business in any which way they like.  In fact, in several states, bail funds are making the argument that they should not be responsible for paying forfeitures.  

2. Putting the Public at Risk

While bail funds publicly state on their websites the type of low-level people and crimes they will bail out, they can be misleading to both the public and their donors.  At times, they are bailing out any and everyone they can, irrespective of the charge or criminal history.  And when a bail fund releases a defendant, there is no supervision or oversight, unlike the bail industry.  Here are a few examples:

• In October of last year a New York bail fund bailed out a man that killed four homeless people not once, but twice (To see article CLICK HERE). 

   

• In December, 2019, The Bronx Freedom Fund bailed out a child molester who then went on to molest an 8 year old (To see article CLICK HERE).  

• In October of 2019, The Bail Project, with a donation from the Carolina Panthers, bailed out a man who had assaulted a woman.  This is after they publicly stated that “All of the bail project clients that are receiving our donation have been charged with low level, non-violent offenses and they have no ties to domestic violence." (To see article CLICK HERE).  

3. Lack of Transparency/Accountability

When someone is bailed out through a bail fund, there is very little documentation of the bail funds involvement in the release.  The records will typically show the name of a person who posted the cash but not identify the organization behind the cash.  This lack of transparency can lead to serious problems and should be unacceptable to everyone including our elected officials.  Where does the money come from? Who is behind the money?  How was it obtained?  There is nothing stopping organized criminal syndicates from setting up their own bail fund to fly under the radar and release anyone they want to.

Some argue that bail funds are really about disrupting the criminal justice system and to keep it from operating smoothly.  They do not seek to fix or address a shortcoming of the present system; they want to break it down and keep it from operating as intended.  Unregulated bail funds can be used to encourage repeat criminals to commit even more crimes jeopardizing public safety.  Our local and state officials cannot allow this to happen.  If bail funds are going to exist, they must play by the same rules as any other entity within the criminal justice system.  Proper and responsible regulation of these entities is essential to a free democracy and to transparency.  We must ensure that these entities are not being misused and ensure that they are not allowed to haphazardly release dangerous repeat offenders into our communities.  We must ensure that the operators of these bail funds are not only identified properly in the chain of custody, but also held accountable for ensuring the appearance of each and every defendant they release.  

Bail funds, like every new and trendy criminal justice system solution before it, can have a place in the criminal justice system.  But that place must be defined, legislated, and regulated so as to promote justice, fairness, and public safety for all...not just the accused.