Until recently, the Minnesota Freedom Fund, which began paying criminal bail and immigration bonds in 2016, had one full-time staff member, one part-time staff member, and eight volunteer board members, all of whom had full-time jobs elsewhere. Its average annual budget was about a hundred and fifty thousand dollars, and getting that amount together was not easy. “It was very much, ‘Who’s going to write this grant to this organization so we can raise some more money?’ ” one of those board members, an immigration attorney named Mirella Ceja-Orozco, told me. Then, on May 26th, hundreds of people poured into the streets of Minneapolis to protest the horrific killing of George Floyd by a police officer named Derek Chauvin. Cops cracked down on the unrest, and people on Twitter began sharing a link to the Minnesota Freedom Fund, so that protesters who were arrested could be bailed out. Days and nights passed, the protests continued, and the money kept coming in. People who had never heard the term “bail fund” before Googled it; donation-matching challenges went viral. The organization began pointing donors to other local groups, but the donations didn’t stop. By the end of the first week of June, the fund had received more than nine hundred thousand donations, totalling more than thirty-one million dollars.
Ceja-Orozco, who’s in her mid-thirties and comes from a family of mixed immigration status, asked for time off from her paying job so that she could help the fund full time. The organization hadn’t anticipated this instant explosion in attention and responsibility—its e-mail account briefly stopped working because too many new messages were coming in. There were also behind-the-scenes conflicts among the staff, which, a week or so later, would finally spill into public view. And, in the meantime, the tiny crew had many more people than usual to bail out.
In the money-bail system, a person charged with a crime must provide, as security, an amount set by a judge based on a bail schedule; if that person cannot pay, he or she is held in jail until trial. The money is returned after the case is closed, or after the case is dismissed, which happens somewhere between a third and half of the time—a huge number of people every year spend time in jail for charges that are ultimately deemed not worth pursuing. Around sixty per cent of those in jail on any given day are awaiting trial, and most of them are being held there because they could not afford bail. Even low bail amounts are generally not affordable: in New York, nine out of ten defendants are unable to pay bail at arraignment. Many end up turning to the two-billion-dollar commercial bail industry, an industry that only legally exists in two countries, the U.S. and the Philippines. The jail population is disproportionately black, because racism is embedded at each level of the system: black Americans are poorer than white Americans, their neighborhoods are more aggressively policed, and black men are consistently assigned higher bail amounts than white men who have been charged with similar crimes. Being held on bail often means losing your job, your housing, custody of your children; it means fighting your case from a place of minimum agency—and, very often, accepting a criminal conviction as the price of going home.
As the protests over Floyd’s killing spread around the country, bail funds in other cities were also deluged with donations. The National Bail Fund Network, which provides coördination and resources for such funds, has now received money from nearly two million people; the funds that it supports have raised an estimated seventy-five million dollars. In ordinary times, public defenders and family members of the accused call bail funds to request help; some funds have staff members who monitor arraignments. But during periods of protest the support system grows: legal observers and activists go to jails and courthouses, ready to contact a bail fund as soon as protesters are brought in, or when bail is set. The first formally organized bail fund was created by the American Civil Liberties Union, a hundred years ago, specifically for protesters, after Congress passed sedition laws in an attempt to deter the rise of communism—and there are still funds that focus on protest bail, such as the Atlanta Solidarity Fund. But “there’s always an overlap” between those funds and community bail funds, Pilar Weiss, the director of the National Bail Fund Network, told me. During the recent wave of protests, she said, “Community bail funds and protest bail funds have essentially merged.”
The readiness of organizers to meet the demands of the moment is the result of steady work that has been going on for years. The Chicago Community Bond Fund was created in 2014, to raise bail for people arrested at a vigil for DeSean Pittman, a teen-ager who was killed by the Chicago police. In the six years since, it has paid more than two million dollars in bond for Chicago residents. Activists have used social media to amplify this work and broaden its base of support. For the last three years, the abolitionist activist Mariame Kaba has raised money for bail funds on New Year’s Eve, encouraging people to donate the cost of a drink and engaging thousands of new donors every year. The National Bail Out Collective makes a fund-raising push every year around Mother’s Day; this year, a #FreeBlackMamas campaign raised more than two million dollars from twenty-four thousand individual donors, and they have bailed out seventy-one mothers and caregivers in the weeks since.
I first donated to a bail fund in 2015, drawn, like a lot of people, by how directly such support alleviates human suffering. (I have given money to many of the organizations mentioned in this piece.) The money that a fund uses to pay bail can serve as a kind of endowment, because the bulk of the money almost always comes back. But the difficulty of actually getting it back is one of the reasons that bail funds are essential. “What some people don’t understand is that there are a lot of lags in the system,” Weiss told me. “It’s not an instant process when a person gets arrested and a bail fund gets them out. And, afterward, they don’t close the case and say, ‘Here’s your money back,’ either. It can take two weeks, or it can take years. It’s very clear that the state expects people to be ground down by the effort to get their bail money back—and that, as with incorrect health-insurance claims, they might just give up.”
Bail logistics have gotten even more complicated since the onset of the pandemic: courts often keep irregular hours these days, as do banks, which makes it harder for organizers to obtain cashier’s checks or large amounts of cash and then post bail. (Minneapolis is in Hennepin County, which does not accept checks or credit cards and requires exact change.) Since the Floyd protests began, the Minnesota Freedom Fund has seen bail set as high as five hundred thousand dollars, prior to one detainee’s arraignment. (At the arraignment itself, the bail was dropped to seventy-five thousand dollars.) A lot of Minneapolis protesters were released without bail, possibly thanks to public awareness that crowded jails have become COVID-19 hotspots. But some protesters have been pulled into ICE detention, which does not come with public records and jail rosters, Ceja-Orozco told me. She and the other organizers were also concerned that the police department might begin doubling back to arrest protesters on heftier charges, drawing on video evidence.
The work has felt vital and important, Ceja-Orozco told me, even though the fund’s necessity is and always will be a source of frustration. Like many of its peer organizations, the Minnesota Freedom Fund would like to put itself out of business: they don’t want to make bail more fair, they want to end it. And, for many of them, that abolitionist impulse extends well beyond bail. “It is inspiring to see this progressive momentum in Minneapolis,” Ceja-Orozco said, “but it’s hard in a lot of ways to celebrate our work. The truth is, we don’t want to exist, really. We don’t want to help this bail cycle continue. We don’t plan to be a long-term organization.”
Bail was originally supposed to be emancipatory, more or less. When bail as we know it in the United States was first conceived, in England, more than a thousand years ago, the state was not responsible for criminal justice, and crimes were mostly punished through financial penalties (an improvement on the previous practice of settling scores through blood feuds). Bail allowed the accused to remain free until trial—and the accused did not have to put up any money, only to identify a guarantor for the amount that he would owe if convicted. June Carbone, a professor at the University of Minnesota Law School, has written that this model was perhaps the idea’s “last entirely rational application.” In the eleventh century, the English state began to assume responsibility for criminal justice, and financial penalties started giving way to capital and corporal punishment. Judges turned to high bails as a way of keeping people detained until they were tried. By the time English bail law was imported to Colonial America, “excessive bail” was technically forbidden—and state constitutions later proclaimed the right to pretrial liberty—but the reality of bail as a punitive instrument, and a method of social control, was already taking shape.
Families, churches, and other collectives pooled money to free their own, a way of resisting this sort of control. The bail fund created by the A.C.L.U., in 1920, established a model that other organizations could follow: after Congress passed the Smith Act, in the forties, which made advocating for the overthrow of the American government a crime, a group called the Civil Rights Congress formed a bail fund for those who were charged under the law, which has never been entirely repealed. (In 1951, the attorney general of New York turned over the names of the fund’s contributors to the F.B.I.) In the sixties, civil-rights groups bailed out activists from Massachusetts to Mississippi. College students bailed out peers who were arrested for protesting the Vietnam War. In 1966, Lyndon Johnson signed the Bail Reform Act into law; the legislation encouraged leniency on the part of judges but left the money-bail system intact. State legislatures pushed back against the law almost immediately, and, in 1984, a second Bail Reform Act restricted the changes of the first.
The contemporary bail-fund movement is largely a product of the last decade, and got its start in New York City. In 2007, Robin Steinberg and David Feige, of the Bronx Defenders, a groundbreaking public-defenders’ office, launched the Bronx Freedom Fund, to pay low-level bails for Bronx residents. Two years later, a judge ruled that the fund was a bail-bond business and was not properly licensed or certified, and shut it down. But the organization had already generated telling outcomes. The category of defendants that the fund bailed out typically pleaded guilty ninety-five percent of the time; after receiving access to bail money, none of the nearly two hundred people the fund helped went back to jail on their original charges. (Many cases were dismissed, and most convicted defendants received non-jail sentences, like fines or community service; a few received time served.) Steinberg and Feige pushed for state legislation that would permit bail funds to operate, but Governor Andrew Cuomo vetoed their first bill, in 2011. A year later, the Charitable Bail Organizations Act was passed, with some concessions: charitable bail was capped at two thousand dollars, and only those who’d been charged with low-level crimes were eligible. (Opponents of bail reform continue to argue that the ability of judges to set high bail amounts and to use their discretion to lock up defendants accused of more serious crimes is necessary to keep the public safe.)
In 2015, another group of public defenders, with the assistance of a lawyer named Peter Goldberg, launched the Brooklyn Community Bail Fund. Later that year, Kalief Browder, who had been accused of stealing a man’s backpack and then spent three years on Rikers Island, unable to post bail, died by suicide. Under the terms of the 2012 bail legislation, Browder, who was charged with grand larceny, was not eligible for charitable bail. His death—and, a month later, that of Sandra Bland, in Texas—sparked wider interest in the work that bail funds were doing. By the end of last year, the Brooklyn fund had posted almost five million dollars to bail out more than four thousand defendants, and it had helped create the National Bail Fund Network.
The success of the Brooklyn Community Bail Fund was worrying to those inside the organization, however. They began to suspect that the fund was serving as a release valve for the worst aspects of New York’s criminal-justice system. The city even launched its own bail organization, the Liberty Fund, in 2017, a bureaucratic ouroboros that uses municipal money to support the mission of bailing out people whom the city itself would otherwise jail. There are city councilmembers, Francisco Moya and Mark Levine, who have accepted contributions from the Police Benevolent Association, a union that has aggressively opposed bail reform, and then donated money to the Brooklyn Bail Fund; earlier this year, an Arkansas sheriff celebrated the work of the Bail Project—a national nonprofit that was founded, in 2017, by Robin Steinberg, formerly of the Bronx Defenders—as a solution for jail overcrowding. Four organizers subsequently published a piece arguing that “bail funds lacking an abolitionist analysis risk cooptation by the system they seek to destroy.” (I got the sense, during my reporting, that some activists do not regard the Bail Project as fully committed to abolition. Steinberg told me that the organization, which has paid twenty-six million dollars in bail for nearly eleven thousand low-income people—and which, during the past two weeks, has raised more than fifteen million dollars from almost two hundred thousand people—is “fighting for a society without jails and prisons,” and that getting there is a question of “strategy, not just vision.”)
Peter Goldberg, who is now the executive director of the Brooklyn fund, told me, “The fear and the trap around bail funds is always that people will begin saying, ‘Here’s some money, I’m doing the right thing.’ We have to be crystal clear about the fact that bail funds are not the answer, that we are fighting for something much bigger—an end to jailing.” He added, “We’ve had to explain to a bunch of white saviors that them giving us money is not what solves this.” Last fall, New York expanded the Charitable Bail Organizations Act in a way that, as Goldberg and his colleagues see it, effectively enshrined the work of bail funds as a part of the carceral system. After the new legislation was passed, they decided that the Brooklyn Community Bail Fund would no longer post criminal bail, as of January 1st. The fund is still paying a “shitload” of immigration bonds, Goldberg said, because, as he put it, there is “no risk of not being in complete tension with the immigration-detention system,” in which many detainees are deemed ineligible for bail. But the organization has mostly shifted its focus to new legislative efforts, and to court-watching programs, which train volunteers to attend arraignments and recognize incidents in which judges and prosecutors go out of their way to keep defendants in pretrial detention, or otherwise circumvent the terms set by the new bail law.
Thousands of protesters have been arrested in New York City, and many have been held illegally and unsafely, but most of them have been released without bail—thanks in part to the bail-reform legislation passed in the fall. Goldberg was at the first Friday-night protest at the Barclays Center, in Brooklyn, when people on Twitter began calling for donations to the B.C.B.F. as a way of supporting protesters. After some frantic texting, the group retweeted a link explaining the recent shift in its mission, adding a note that the organization was prepared to pay bail for anyone it could in this moment. It also redirected people to Free Them All for Public Health, a group that had been calling for the release of vulnerable inmates from jail in the midst of the pandemic, and which had already stepped up to handle protest bail in New York City.
In Chicago, too, the past work of anti-bail activists has cut down on the amount of money necessary to free those who’ve been arrested; Sharlyn Grace, the executive director of the Chicago Community Bond Fund, told me that arrested protesters are likely to get misdemeanor charges and to be released without having to pay anything. Grace suggested that the past two weeks may have prompted some people to fetishize bail funds as a solution, in part because there is such a clear conceptual rightness in helping people who are punished by the criminal-justice system for protesting that system. But, like her peers in Brooklyn and Minneapolis, Grace was emphatic that she didn’t want the organization’s work to continue indefinitely. The Chicago fund is part of a broad coalition that hopes to pass legislation, in 2021, which would end money bond in Illinois. “We’ve been very clear from the beginning that the goal of C.C.B.F. is to put ourselves out of operation,” she said. “Bail funds are essential, but they do not have to be. We have over a million dollars in the custody of the court system. What could that resource be doing for the movement if it weren’t being used to pay ransom to the state?”
Last week, the Minnesota Freedom Fund weathered a storm of online outrage, generated by a motley coalition of right-wing Internet personalities, conspiracists, and ostensible supporters who were upset that the organization had only spent about a quarter of a million dollars, so far, to bail out protesters. A screenshot of a deleted page from the organization’s Web site, showing board members who all appeared to be white, circulated widely. “It was never the case that we were all-white, though we were majority-white,” Octavia Smith, the current board president, who is black, told me, adding that four of the seven current board members are people of color. “Diversity has been a problem for us, just as it’s been a problem within the state of Minnesota.” Smith, who is in her late twenties, grew up in the Bronx and moved to Minnesota to earn a master’s degree in public policy; she began volunteering with the fund in late 2016, and became the board president in 2018. She served as emeritus board president until the end of May, when she stepped back from the role. She told the Times, “I had some disagreements around leadership,” adding, “That is probably all I'm able to say.” The fund’s former executive director, Tonja Honsey, was recently in arbitration with the organization. She has been accused of fabricating Native American ancestry; in an interview with the Times, she said that the accusation was false. Honsey and the fund have since parted ways and Smith was reinstated as president on June 11th.
The Minnesota Freedom Fund has “a working board, not a governing board,” Smith pointed out, meaning that “board members were going down to the courthouse and bailing folks out, doing what sometimes amounted to full-time work on top of their actual jobs. As board president,” she went on, “I was very cognizant of the need to hold true to our values, to center racial equity, while also not wanting to exploit the labor of black and brown folks—recognizing who is able to volunteer that kind of time.” On Twitter, the organization explained that it had paid “all protest bail that’s come our way,” and that the huge influx of cash would help them go after other aspects of the criminal-justice system, such as the high financial burden of ongoing legal proceedings for protesters who were arrested but not detained and for the many people in Minneapolis who were still being held in pretrial detention. Its mission, members said, was to empty Hennepin Jail, a pretrial facility holding hundreds of people.
When the group was founded, just a few years ago, that goal might have seemed like a moon shot. But challenges to the money-bail system were gaining political momentum well before the killing of George Floyd. Progressive prosecutors, such as Larry Krasner, in Philadelphia, have declined to seek bail for low-level charges; in 2017, a judge in Harris County, which includes Houston, ruled that the county’s bail practices were unconstitutional, and more than twelve thousand people charged with misdemeanors were released from jail. In 2018, California passed a law eliminating money bail.
These reform efforts have often become snarled with complications, however. The legislation in California instituted an algorithmic risk-assessment system, which calculates a person’s likelihood of posing a threat to public safety or of returning to court, and activists worry that such systems perpetuate racial injustice—if black people are disproportionately targeted by the criminal justice system, data about prior criminal activity can’t be considered neutral. (The commercial bail industry, meanwhile, afraid of being put out of business, helped put the bill up to a referendum, set for November, before it could become law.) The expanded reforms that New York passed last year, and which took effect in January, were met with an immediate backlash: police called attention to defendants who were released without bail and allegedly committed other crimes afterward; by January 8th, Governor Cuomo was walking back his support for the reforms, saying that they came with “consequences that we have to adjust for.” In February, the N.Y.P.D. reported a spike in crime and blamed the bail reform laws. (A coalition of public defenders suggested that the N.Y.P.D., which decides who is arrested and who is not, had generated these statistics deliberately.) In April, at the height—so far—of the coronavirus pandemic, Cuomo rolled back the reforms, adding fifteen new categories of bail-eligible crimes. The rollbacks go into effect in July, and bail organizers worry that protesters might face a wave of more severe charges thereafter. (Investigators could, for instance, use social media as the basis for new arrests, weeks after protests have taken place.)
Two years ago, in an article for the Georgetown Journal on Poverty Law and Policy, Rachel Smith compared the current movement against money bail to the efforts that led to the first Bail Reform Act, in the sixties, which was so quickly undone. “The central message is simple: reformers must accept nothing less than overhauling the pretrial system,” Smith wrote. For most of the activists I spoke to, even that would not be enough. Many see their work as a gateway to prison and police abolitionism. Bail funds, as Jocelyn Simonson, an associate professor at Brooklyn Law School, has written, “send a message to judges and to policymakers that something is awry” in the system. Protests amplify this message; the moral logic of the bail fund, in which people come together in the hopes of dismantling unjust state power, becomes the logic of the day. “When you stop and think about bail—about the fact that how much money you have is the thing that determines whether or not you’re in a cage—it appears intuitively unjust after about a half minute,” Simonson told me. “Bail funds ask you to think about it for a full minute, to understand jail as a violent place, no matter what. Now everyone protesting is asking us to think about it for two minutes, and to consider all the different forms of the violence of the carceral state. Maybe we have these minutes, now that we’re sitting at home.”
Even before the killing of George Floyd, the coronavirus pandemic had re-illuminated the racism of the criminal justice system, and the dangers that it poses to public health and safety. COVID-19 infection rates are two and a half times higher in prison than they are in the general population, and, in New York, eighty per cent of COVID-19 deaths behind bars have been people of color. “People are sympathetic and interested in the plight of protesters, in the plight of people awaiting trial,” Sharlyn Grace, of the Chicago Community Bond Fund, told me. “It’s easy to understand why detention under those conditions is unfair and racist.” But, she went on, the system is not merely unjust in its treatment of those who have not yet been tried. “When we talk about the harms of money bail,” she said, “we’re actually talking about the harms of incarceration. And these harms—this disproportionate racial impact—they hold true whether someone has been convicted or not.” It was discussing these things, Grace said, that helped people begin to divorce their idea of safety from policing and prisons. “We can start talking about divesting from violence, investing in things that actually make people thrive. That is abolition. And that is something people can understand.”
After the unrest in Ferguson, in 2014 and 2015, many people demanded reform—for police to be outfitted with body cameras and receive racial-sensitivity training. This time, there has been a louder call for more radical ideas: divestment, defunding, the replacement of police officers with unarmed crisis workers and medical professionals. Decades of black-abolitionist writing and activism, from groups such as Critical Resistance, which was formed in 1997, and the Movement for Black Lives, which called for defunding police departments in its 2016 policy platform, have come to rapid fruition. In her book “Are Prisons Obsolete?,” from 2003, the philosopher and activist Angela Davis described prison as an “abstract site into which undesirables are deposited, relieving us of the responsibility of thinking about the real issues afflicting those communities from which prisoners are drawn in such disproportionate numbers.” In a recent Op-Ed for the Times, titled “Yes, We Mean Literally Abolish the Police,” Mariame Kaba argued that “we should redirect the billions that now go to police departments toward providing health care, housing, education, and good jobs. If we did this,” she wrote, “there would be less need for the police in the first place.”
That line of thinking is guiding the newly flush bail funds in Brooklyn, Chicago, and Minneapolis, all of which have been redirecting donor attention to groups that deal with the underlying causes of criminalized activity—poverty, social disenfranchisement, the lack of safe public space. The Chicago fund has raised more than three and a half million dollars from more than seventy-five thousand donors; if it meets the demand for bail in Cook County, it will fund protest bail elsewhere and regrant money to local organizations. On Monday, the group announced that it had partnered with three other organizations to pay the four-hundred-thousand-dollar bond for Chrystul Kizer, a nineteen-year-old who has been incarcerated in Wisconsin for two years while awaiting trial for the killing of a man who had sexually abused her and trafficked her for sex for years. (She has maintained that she was acting in self-defense.) The Brooklyn fund also expects to funnel support to bail funds elsewhere and to grassroots groups that address “systemic issues that have led to the terrorizing of black and brown communities, and frankly don’t get enough funding or respect or publicity,” as Goldberg put it.
The Minnesota Freedom Fund, meanwhile, which was a tiny organization when all this began, has been on a unique sort of overdrive. They are talking about hiring more paid staff members and expanding their volunteer roster; they’ve hired a nonprofit lawyer—there are legal restrictions on how a nonprofit can regrant donations—and an employment lawyer, and have brought on more accounting support. “We’ve had probably twelve meetings in the last two weeks about how we can redistribute the money,” Ceja-Orozco said. “We’re trying to figure out how to adhere to donor intent, which is a necessity, while also adhering to the larger mission to support the community that our work has always been striving to help.”
Even the organizations that the Minnesota fund initially pointed people to have begun directing support elsewhere. Reclaim the Block, a local group pushing for divestment from policing in Minneapolis—which recently faced its own local demands for transparency—plans to redistribute more than seventy-five per cent of the money it has received since the end of May through July 1st. The North Star Health Collective, a group of street medics and community health workers, is asking would-be donors to send funds to black-led community groups, to support centers for young Native people, or to a group that organizes low-wage workers.
The funds in Chicago and Minneapolis don’t expect to stop paying criminal bail any time soon, the way that the Brooklyn fund has—the circumstances in Illinois and Minnesota will keep them focussed on their mission as it is. “Now, thanks to you, we have money,” the Minnesota Freedom Fund wrote on Twitter. They also had a swell of volunteer interest, which was important, because “we’ll need people power, not just cash, for what comes next: mass liberation.” The task ahead, as they see it, is to direct all the people suddenly watching them toward the larger truths about the criminal-justice system that have underlined this moment. If Floyd had not been killed, on May 25th, his alleged crime—using a counterfeit twenty-dollar bill—could have put him in jail, in Minnesota, for up to a year. His death is a travesty; the life he might have led after his arrest would not have represented any form of justice. Protesters have taken to the streets to declare police brutality, one form of state control, illegitimate; in bailing them out, millions of people have effectively deemed another form of state control illegitimate, too. How much further can that instinct for deliverance go? “This is a long battle,” Octavia Smith told me. “Bail is the interim work. We get people free, and then we work to abolish the systems that keep people from freedom in the first place.”
Race, Policing, and Black Lives Matter Protests
- The death of George Floyd, in context.
- The civil-rights lawyer Bryan Stevenson examines the frustration and despair behind the protests.
- Who, David Remnick asks, is the true agitator behind the racial unrest?
- A sociologist examines the so-called pillars of whiteness that prevent white Americans from confronting racism.
- The Black Lives Matter co-founder Opal Tometi on what it would mean to defund police departments, and what comes next.
- The quest to transform the United States cannot be limited to challenging its brutal police.
