Community Bail Funds and Nullification of Pretrial Detention

Jury trials are full of the unexpected. Witnesses fail to honor subpoenas. Witnesses who show up testify in ways that differ from or flatly contradict their prior statements. A judge’s ruling on an evidentiary issue can keep out a key piece of physical evidence or shut down an important line of questioning (or even an entire witness’s testimony). The deus ex machina of the high drama—the saving grace of the hopeless defense, the torpedo to the ironclad prosecution case—is jury nullification, when a jury acquits a defendant despite, and with full recognition of, his legal guilt. Jury nullification is when a jury renders a verdict not based on the law, but on what they feel the law should be.

Jury nullification is probably as old as the jury trial itself and the subject of continuing debate. One side holds that nullification is a necessary check on tyrannical government power; the other maintains that it’s an illegal usurpation of power. A new development in the conversation over the role of community players in administering criminal justice is the concept of “bail nullification.” As Professor Jocelyn Simonson (Brooklyn Law School) explains in a forthcoming law review article endorsing “bail nullification” (and coining the term), community bail funds can do for bail what nullifying jurors do for verdicts:

In recent years, community groups in jurisdictions across the United States have increasingly begun to use bail funds to post bail on behalf of strangers, using a revolving pool of money. These funds include new charities set up in partnership with public defender offices in Massachusetts, the Bronx, Brooklyn, and Nashville as well as identity-based bail funds that range from a bail fund for transgender sex workers of color in Queens, New York to a bail fund supporting communities of color targeted by policing in Chicago, and bail funds formed by activists within the Movement for Black Lives, who have used crowdsourced funding to post bail for hundreds of protesters and allies in Ferguson, Baltimore, Cleveland, Oakland, and Baton Rouge. Each time a community bail fund pays bail for a stranger, the people in control of the fund reject a judge’s determination that a certain amount of the defendant’s personal money was necessary for the defendant’s release.

I wasn’t aware of community bail funds until I read Simonson’s article—as far as I know, none operates in Colorado—but the nascent practice seems likely to spread. Recent efforts to reform the criminal justice system have focused on sentencing and the perceived unfairness of mandatory minimum sentences, particularly with regard to drug offenses. But as Simonson notes, “For most indigent defendants, bail is the ballgame.” If a defendant is unable to make bail, she is detained in jail pending trial, which may cost the detainee wages (if not her job), custody of her children, and housing. Because most defendants, even those convicted of felonies, end up receiving probation as a sentence, defendants who cannot make bail may secure their immediate release by pleading guilty in exchange for a probationary sentence. For this reason, an unintended but not unexpected consequence of the bail system is to deter defendants from exercising their trial rights. Research has also shown that defendants detained before trial receive harsher sentences than their bail-posting peers and are less likely to see the charges against them dismissed. Private organizations must lobby legislators to effect sentencing reform, which is expensive and comes without certainty of making measurable gains. Bail funds allow reform-minded individuals to intervene directly in the criminal justice system to immediate effect. If community bail funds were to catch on, they would be a potent force, for good or ill.

Bail can be problematic. Everyone charged with a crime enjoys the presumption of innocence until he pleads guilty or a jury or judge finds him so. Bail isn’t punishment, but it has the effect of depriving a defendant of liberty or, if he pays bail, property, without a finding of guilt. The concerns of those pushing for bail reform are real. Bail falls hardest on the poorest, and sometimes, perversely, on the lesser law-breaker. Some defendants, with little or no employment history listed in their jail dossier, post high bonds within a matter of hours, simply by phoning a friend. To draw the inference, I’ve seen drug-pushing middlemen quickly bond out, while addicts linger in custody, unable to post the much smaller bond on a possession charge. I’ve also witnessed defendants fold and plead guilty when their public defender informs them that to roll the dice before a jury they will have to sit in custody for months. Bail can certainly be a blunt instrument, and its effectiveness is debated.

While our country’s system of bail is imperfect, in my estimation the system’s flaws do not outweigh its merits. Defendants in criminal cases routinely fail to show up for court and it’s not uncommon for individuals to pick up new charges while in the community pending trial. Given these realities, a system that handed out personal recognizance bonds (i.e., no-cost bail) across the board wouldn’t do justice either. Consider that safeguards exist to prevent unjust and lengthy pretrial detention: (1) an officer cannot make an arrest without probable cause to believe an individual committed a crime, (2) defendants are typically entitled to a probable cause hearing before a court can detain them pending trial, and (3) many states have speedy trial statutes requiring courts to bring defendants to trial within a period of months. Add to those protections the fact that bail statutes generally require judges to set a bond by assessing the characteristics of a specific defendant and the seriousness of the alleged offense. In the jurisdiction where I practice, Pretrial Services surveys each defendant and assigns a score to gauge the individual’s risk of nonappearance. Such procedural protections reduce the risk of unjust, discriminatory, and overlong pretrial detention.

In Simonson’s view, when members of the community use a bail fund to nullify a judge’s decision, the routine act of posting bail is elevated into a powerful “act of resistance” that “undermine[s] the power of institutional actors.” Simonson depicts community bail funds as a disruptive force in the justice system, but I think her focus on “nullification” is misplaced. By definition, nullification entails the subversion of legitimate authority. There’s nothing necessarily subversive or disruptive about charitable acts that may spur a defendant to take greater accountability for his actions. (It doesn’t surprise me that 95% of the Brooklyn Community Bail Fund’s beneficiaries make their court appearances. Defendants know that relatives and friends may bail them out multiples times if necessary; beneficiaries of a community bail fund likely recognize a bail fund’s generosity is limited.) And while community bail funds are new, the act of posting bail on another’s behalf is not. I’ve listened to enough jail calls to know that often it’s not the defendant himself who cobbles together bail money, but rather his family and friends. Community bail funds may simply act as a gap-filler for defendants who are indigent and don’t have family or friends with means to assist them. In this sense, the actions of community bail funds aren’t comparable to juries who nullify the law. Jury nullification is corrosive to the rule of law. Community bail funds rather operate within legal bounds.

My thought is that community bail funds have the potential to accomplish some good if care is taken to distribute funds to defendants who are likely to provide a positive return on a fund’s investments. I note that bail funds are selective. The Bronx Freedom Fund pays bail only in misdemeanor cases. The Memphis and Nashville Community Bail Funds assist people who “pose little flight or safety risk to the community.” When judges set bail, they calculate risk. The same goes for a bail fund. If too many clients fail to appear for court or commit new crimes, bail is forfeited and the revolving pool of money begins to dry up. If a bail fund has a habit of releasing offenders who commit violent crimes and other serious offenses while awaiting trial its good will in the community will disappear. On the other hand, if bail funds allow indigent defendants to maintain a job and housing while pending trial, and also incentivize good behavior and court attendance, it’s conceivable they could become a fixture in the justice system, and even institutional actors may accept them.

Obama’s Criminal Justice Legacy, In His Own Words

The week ahead is Barack Obama’s last as President. (It’s strange to the write that.) In the twilight of his second term President Obama is full steam ahead with the bold executive gestures that have characterized what historians may one day label “the pen and phone period” of his presidency: the ban on offshore drilling, the designations of Bears Ears and Gold Butte National Monuments, granting clemency to 231 prisoners in a single day. Less momentous, but of interest, is Obama’s recent barrage of scholarly publication. In addition to penning articles in Science and the New England Journal of Medicine, last week Obama published “The President’s Role in Advancing Criminal Justice Reform” in the Harvard Law Review. In 1990, Obama became the first black president of the Harvard Law Review, and he went on to teach constitutional law at the University of Chicago. Despite his academic pedigree, Obama never left a paper trail: last week was the first time he published a piece of legal scholarship in his name.

“The President’s Role in Advancing Criminal Justice Reform” doesn’t read like a traditional law review article. Light on analysis, heavy on political platitudes (the phrase “second chance” appears 17 times), it reads more like an apologia for Obama’s record on criminal justice reform. (Like your standard law review commentary, though, it has 300+ footnotes.) Here’s a quick summary of the article, followed by some commentary:

Obama begins by stating the case for reform—the high rate at which America incarcerates its citizens and the associated economic and social costs, the “school-to-prison pipeline,” the disparate impact of the system on communities of color, and the bipartisan consensus in favor of reform.

Regarding reform at the federal level, Obama lauds his Department of Justice for reversing policies that (1) required federal prosecutors “to bring charges that could result in the most severe possible sentence,” (2) allowed prosecutors to use certain sentencing enhancements to trigger “excessive mandatory minimums for low-level, nonviolent drug offenders,” and (3) required defendants who accepted plea agreements to waive their right to appeal based on ineffective counsel.

From there Obama moves on to discuss his most significant legislative accomplishment in the field—the Fair Sentencing Act (FSA), which revised a sentencing scheme that doled out harsher punishments for crack cocaine offenses than for powder cocaine offenses. As Justice Breyer explained in Dorsey v. United States, 132 S.Ct. 2321 (2012), before the FSA the law imposed “the same 5–year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of powder cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack.” The FSA reduced this 100-to-1 disparity to 18-to-1, and eliminated the mandatory minimum sentence for simple possession of crack. More comprehensive reform legislation, which would have eliminated or reduced mandatory minimum sentences for nonviolent drug offenses, garnered bipartisan support but never made it to the floor of Congress. Were these efforts successful? The President notes that he’s the first “in decades to leave office with a federal prison population lower than when I took office, even as my Administration saw the rate of violent crime fall to its lowest point in decades.”

On the correctional front, Obama recites achievements such as the Bureau of Prison’s reduction in the use of solitary confinement (it’s now prohibited for juveniles and as a response to low-level infractions), DOJ’s move to end the BOP’s reliance on private prisons, and an emphasis on reintegrating offenders into society. Obama describes one White House initiative that commits businesses and educational institutions to “banning the box” (i.e., removing from job and college applications the part where you have to disclose a criminal record).

Obama may be most proud of his use of the pardon power. To date, he’s commuted more than 1,000 sentences, more than the previous 11 presidents combined. He underscores that this largesse of clemency is not unprecedented: he is “reinvigorating” the power, which was “used . . . on average 222 times per year between 1885 and 1930.”

In a section on state and local reform, Obama acknowledges that the president’s ability in this realm is limited, but that grants, best practice guidelines, DOJ civil rights prosecutions, and wielding the bully pulpit, can all help drive such reform. For example, Obama references the DOJ’s investigation of Ferguson, Missouri, and his Task Force on 21st Century Policing.

In the article’s last section, “Work Unfinished,” Obama urges passage of sentencing reform and gun control legislation, increased treatment opportunities for opioid addicts (the ACA gets a shout-out), improvement of forensic science and data collection, restoration of the franchise to offenders who have paid their debt to society, and the use of technology to promote trust in law enforcement (e.g., body worn cameras). Obama fittingly ends with the word “redemption.” The last eight years have to have taken a toll on Obama’s optimism, but it’s still alive. As with almost all of his sales pitches, he guarantees a win-win with his proposals for criminal justice reform: Not only does such-and-such policy [insert beneficial effect: improve public safety/reduce budget deficits, etc.], but it’s the right thing to do.

One conspicuous omission from the article is marijuana and Obama’s blessing of state initiatives to legalize its recreational use. Although he may be pivoting to a career in academia (?), Obama is still posturing politically and his article, which seeks to inspire governmental reform, thus avoids a divisive issue. Obama is also cautious in how he addresses issues surrounding race. He champions police officers as the “heroic backbone of our communities.” Though Ferguson makes an appearance, Obama mostly avoids the police-citizen conflicts that have roiled the country. He repeatedly refers to disproportionate impacts on communities of color, but in a way that allows the issue to simmer in the background.

Two things I would’ve liked to see more of: There is little in the article about the limits of presidential power in this area. And at times, Obama appears to deem a given policy, initiative, or task force a success simply because of its creation, without rigorously evaluating whether it accomplished its goals.

For a first law review article, Obama didn’t select a bad topic. Throughout his presidency, he’s been criticized for operating outside the law with respect to health care reform, immigration and environmental policy, and the enforcement of Title IX. Obama took a more modest approach to reforming the criminal justice system, and it was one of the few areas where he found bipartisan support. While the article feels politically calculated (Obama certainly wrote it with an eye toward his legacy), he succeeds in providing a blueprint for how a president can act within the limits of his power and without triggering a partisan backlash, to reform a major function of government.