As a national reckoning over racial injustice and police brutality continues, the phrase “criminal justice reform” no longer seems quite up to the task. While the system’s ability to deliver justice was already very much in doubt, a newly energized abolitionist camp is positioning itself against the notion of reform itself. In the United States, some activists argue, the carceral state is beyond reform. They hold that it must be redesigned from the bottom up to cut out entrenched policies that uphold white supremacy under the guise of public safety and the rule of law.
Bail funds are one place where that tension between abolition and reform collides with charitable giving. Community bail funds have been in the news a lot lately. After the killing of George Floyd sparked nationwide protests, scrappy local organizations turned overnight into fundraising powerhouses, drawing in millions to bail detained demonstrators out of jail.
For the celebrities, institutions, and countless small donors who’ve pitched in, bail funds offer an outlet to align with the Black Lives Matter movement and help out in a tangible way. But for bail funds, and at least some of the philanthropies backing them, the goal isn’t just about providing direct aid to people in trouble. At their core, bail funds have a more radical purpose: exposing the needless cruelty of the bail system and paving the way for its abolition.
The as-yet unanswered question is how far this sudden inundation of cash will go toward ending money bail. Can grassroots organizations accustomed to scarcity adapt to a windfall and, possibly, a more favorable fundraising environment going forward? And what’s the best role here for philanthropy, an institution that tends to favor gradual reform over radical change?
A Two-Tiered System
Bail has been around in one shape or another for centuries. The rationale these days is that by posting bail as a security, defendants guarantee their return to court for trial, receiving the money back when the case concludes. That sounds alright in theory, but bail’s tidy assumptions fall apart in the execution. In fact, the way bail works in the U.S. has created a two-tiered justice system: one for those who can afford pay and another for those who cannot.
The vast majority of people in local jails are being held prior to trial, most often because they can’t make bail. According to the Prison Policy Initiative’s 2020 report on mass incarceration, American jails hold a full 470,000 people who haven’t been convicted of anything. As is true across the entire jail and prison population, they are disproportionately people of color, particularly Black men.
The sheer scale of pre-trial detention is bad enough. But its repercussions extend far beyond jail walls. Even a short spell of incarceration can mean losing a home, losing a job or even losing one’s children. Pretrial detention can destroy defendants’ lives while placing immense burdens on their families, often on the sole basis of misdemeanors or other minor offenses. A lot of those cases end up getting thrown out. Even worse, some innocent defendants end up pleading guilty because awaiting trial in jail comes at too high a cost.
Bail funds free low-income people from that trap. Once a bail fund identifies someone in the system who can’t afford bail, it simply pays it for them. As long as the defendant returns for trial, the money returns to the fund for reuse. The model is rather ingenious from a charitable perspective, taking advantage of the nature of money bail to put the same dollars to work again and again.
According to Robin Steinberg, who heads the Bail Project, bail isn’t actually what keeps people coming back to court. The threat of more severe penalties if they don’t show is usually enough. “All that’s necessary is to have an effective way to notify someone about their court date. But living in poverty makes that hard,” Steinberg told Inside Philanthropy, for our profile of the Bail Project in 2018.
The Bail Project is the largest nonprofit in the bail fund space and operates a revolving fund that frees people from pretrial detention across the country. Since 2018, the Bail Project has paid around $26 million to secure the freedom of nearly 11,000 people. In the two weeks following the start of the George Floyd protests, the organization collected over $15 million from nearly 200,000 donors.
But the Bail Project’s fundraising haul in early June is only one part of the story. Even higher sums went to some local bail funds, many of which were unprepared to handle an influx of cash that dwarfed anything they’d ever expected to raise. One that’s been in the news is the Minnesota Freedom Fund, a scrappy outfit that had a pre-protest annual budget averaging around $150,000. In a matter of days, it found itself with a war chest topping $30 million.
The Minnesota Freedom Fund raised one of the most eye-popping sums relative to its size, but it isn’t the only one. About 100 community bail funds exist across the country, not counting the Bail Project’s local sites. Once the protests kicked off and donations began raining in, the shock of the sudden inundation had many of them redirecting donors to allied organizations. “Over 3 million people have donated to a bail fund during the protests,” said Pilar Weiss, director of the National Bail Fund Network. “Some bail funds are saying they’re good on the protests, and that donors should direct resources to the entire ecosystem.”
Unlike the centralized Bail Project, the National Bail Fund Network is a loose confederation of around 70 local funds, each with its own governance, volunteers and strategy. “From a funding point of view, they range from $20,000 to the multi-million range. Some rely purely on crowdfunding, others rely on large donors,” Weiss said. While each fund decides how it’ll operate, the network’s role is to help members make headway toward their North Star: ending money bail and putting themselves out of business.
Bail Fund Backers
Like bail itself, bail funds are nothing new. In a recent piece in The New Yorker on the history of bail and the challenges today’s bail funds face, Jia Tolentino documents how the ACLU set up the first bail fund a century ago, to free protestors, of all things. That tradition continued through the civil rights era, which saw activist groups bail out protestors opposing segregation and the Vietnam War.
The organizations spearheading the current bail fund movement are a lot newer. Some are associated with protest bail, but the majority simply target unjust pretrial detention. The Bronx Freedom Fund, one of the first contemporary community bailout initiatives, dates back to 2007. Steinberg, a former public defender, co-founded the fund, drawing on an initial $100,000 contribution from music executive Jason Flom. Though it encountered some early regulatory setbacks, the Bronx Freedom Fund proved its worth. Steinberg went on to found the Bail Project in 2017.
Over several years of operation, the Bail Project has attracted funding from plenty of philanthropies and major donors. Notable among them is Mike Novogratz, an on-again, off-again billionaire cryptocurrency investor. Through his giving vehicle Galaxy Gives, Novogratz supports a range of criminal justice reform efforts, including the Bail Project, where he serves as board chair. Other members of the global far-upper class have gotten behind the Bail Project, including Richard Branson and—in the era of COVID-19—billionaire angel investor Chris Larsen.
The Bail Project also derives support from high-profile philanthropic collaborations like Blue Meridian and the Audacious Project. Rounding out the organization’s roster of big funders are several family foundations, community foundations, and legacy funders like the David Rockefeller Fund. At the Bail Project, most of the larger philanthropic contributions go toward operating costs and infrastructure. The organization’s biggest source of funding is still smaller donors, like those who furnished it with $15 million in the wake of George Floyd’s death.
In that sense, the Bail Project’s relationship to philanthropy mirrors that of the bail fund movement as a whole. According to Weiss at the National Bail Fund Network, bigger foundations tend to play a supportive infrastructural role. Sometimes they put in place the resources to get a new fund going. More often, philanthropy comes in to scale a promising organization after small donors and volunteers get it off the ground.
“It varies from fund to fund,” Weiss said. “Some bail funds start out as a project of an already-existing nonprofit in the social justice space. If that organization already receives foundation funding, that money can act as seed funding for the bail fund.” For both the centralized Bail Project and the disparate National Bail Fund Network, individual donors furnish most of the money actually spent on bail payments.
The National Bail Fund Network gets its own funding from a distinct set of sources. For one thing, the network is a project under the Community Justice Exchange, a 501(c)(3) nonprofit that describes itself as an “abolitionist organization” dedicated to a world without prisons, policing and immigrant detention. The Community Justice Exchange is, in turn, a fiscally sponsored project of the Tides Center. The National Bail Fund Network actually predates it, tracing its origins to the Brooklyn Community Bail Fund (another money magnet this June) circa late 2016.
Like the Bail Project, the National Bail Fund Network began as an attempt to extend the contemporary bail fund movement beyond its Empire State roots. Open Philanthropy is one of the network’s biggest institutional funders, providing regular support since those early days at the Brooklyn fund. Channeling the wealth of Facebook billionaires Dustin Moskovitz and Cari Tuna, along with other donors, Open Philanthropy’s effective altruist approach to giving has encompassed a great deal of justice reform work over the years.
Also backing the Community Justice Exchange is the Heising-Simons Foundation, through its human rights program area. One interesting recent donation to the National Bail Fund Network came from the cast and showrunner of police procedural Brooklyn Nine-Nine. The folks behind the comedic police procedural chipped in $100,000 and pointed potential donors to the network’s comprehensive list of protest bail funds. The donation speaks to the entertainment industry’s ongoing soul-searching over its portrayal of law enforcement, which often amounts to lionization.
For some advocates, the recent flood of protest-inspired donations has heightened worries that bail funds themselves are too apt to lionization. Celebrity contributions from the likes of Justin Bieber, Harry Styles, Chrissy Teigen and others are hardly a bad thing, but the sudden spotlight could convey a sense that bail funds should be a permanent fixture on the charity scene.
Even though they fulfill an immediate need, bail funds are not meant to last forever. “The goal of community bail funds is to end money bail and pretrial detention,” Weiss said. “We don’t want to be coordinating with the system to bail people out while [the system] doesn’t want to actually end money bail.”
As with criminal justice reform, bail reform runs the risk of perpetuating a system instead of dismantling it. COVID-19 has, in fact, led to moratoriums on bail policies in liberal locales like California and New York City. However, those changes are already being walked back in various ways—either directly, as in New York, or via prosecutorial loopholes and potentially discriminatory “risk-assessment” algorithms in California.
From the perspective of Weiss and other abolitionist advocates, institutional pushback is to be expected. “The system was designed to keep people incarcerated,” she said. Philanthropies, meanwhile, are used to accommodating nonprofits’ desires for sustainability. With their stated intention to phase out when structural change makes them obsolete, bail funds go against the grain.
The Black Lives Matter protest windfall complicates that situation further. Small, lightly-staffed outfits like the Minnesota Freedom Fund weren’t prepared for a sudden influx of $30 million. Putting tens of millions of dollars into play over the course of a week isn’t a realistic expectation. For one thing, the process of bailing people out takes time. A local fund might only have the capacity to guide one or two cases through the system at once. And contrary to popular perception, bail can be prohibitively high even from a middle-class perspective (Weiss mentioned figures as high as a whopping $250,000 for some protestors).
Insha Rahman, director of strategy and new initiatives at the Vera Institute of Justice, put it this way: “Is it fair to expect an organization, especially one as tiny as the [Minnesota] Freedom Fund, to spend or redistribute that kind of money that quickly? Should they have taken down their donation page sooner? How can the field properly support an organization that, through no fault of their own, became one of the faces of the biggest uprising we’ve seen since the 1960s?”
Supporting a Movement
This year’s racial justice protests have heightened an ongoing conversation about who gets what in the nonprofit world. The question of why so little philanthropic support reaches Black-led organizations is rightly receiving greater attention. But this moment won’t last forever. “From what I’ve heard, donations to bail funds have slowed as the protests themselves have dissipated,” Rahman said.
Bail, on the other hand, won’t simply fade with time. And without concerted political pressure, meaningful police reform, much less abolition of bail itself, isn’t a likely prospect either. Unlike news-driven crowdfunding, philanthropy can keep movements and interventions afloat when they aren’t in vogue. That’s a powerful tool in a funder’s arsenal, but one that not too many avail themselves of.
A few that do are the backers of Black-led organizations like the National Bail Out Collective (NBO). Rather than a bail fund, project director Arissa Hall characterizes NBO as a group of “Black organizers, lawyers and cultural workers that use bail outs as a tactic to end pretrial detention and money bail.” In response to the protests, NBO has moved money to Black-led and Black-centered groups to support demonstrators in 18 cities.
One of the projects NBO coordinates is Black Mama’s Bail Out, an annual campaign to free people held in local women’s jails in time for Mother’s Day. Some of the philanthropic entities supporting NBO include Borealis Philanthropy and the Groundswell Fund (both via Southerners on New Ground, one of the collective’s founding partners) as well as the Third Wave Fund.
According to Hall, this moment is an opportunity for philanthropy to cement movement-friendly changes to the way it supports grantees. “It’s inspiring to see that what we’ve always been told [is] impossible, is actually quite possible, and even seemingly static institutions like foundations can shift and be agile to meet the needs of people. And there actually is no need to go back to the old way,” she said.
In a discussion on its website, NBO compares bail and other modern pretrial practices to post-Civil War Black Codes, instituted in the South to restrict the freedom of former slaves and preserve antebellum white supremacy. To truly acknowledge the system’s structural racism, Hall emphasized that funders opposing bail should work to trust Black leadership. Black-led organizations “will be here and organizing with our communities after the sparks,” she said. “It is also important to reject the instinct that is rooted in oppressive systems, to invest in mostly white organizations in response to Black pain and suffering.”