New Georgia Cash Bail Expansion will Criminalize Charitable Bail Funds

Report from the Atlanta Community Press Collective on Republican backed push to criminalize bail funds in Georgia, part of a larger trend nationally.

By: Matt Scott & Sam Barnes

A sweeping state bill expanding the cash bail system and criminalizing charitable bail organizations passed in the Georgia Senate by a 30-17 margin Thursday.

The Georgia House of Representatives is expected to pass the bill Tuesday, after which it will head to Governor Brian Kemp’s desk for his signature.

Different versions of the bill passed both chambers in 2023, and a conference committee with representatives from both chambers developed to negotiate the final version.

Critics warn that the bill will cause significant harm in justice impacted communities.

“You don’t have to be an abolitionist or someone who thinks cash bail should be eliminated to be opposed to this bill,” Sen. Josh McLaurin (D-14) said on the Senate Floor Thursday afternoon.

“Courts usually aren’t allowed to hold someone in jail before evidence has been presented and they’ve had a chance to defend themselves,” explained Spokesman Marlon Kautz for the Atlanta Solidarity Fund, which operates out of Atlanta and pays bail for protesters. “But there’s a loophole: the court can demand a cash bail payment, and if the defendant can’t afford it they’re jailed indefinitely.”

“Bail funds close this loophole in the cash bail system by leveling the playing field: they ensure that anyone—regardless of how poor or marginalized they are—can access the resources to make bail,” Kautz continued. “SB63 exposes that the loophole is not an accident, it’s the intended purpose of the bail system. Police, prosecutors, and politicians want a bail system which allows them to punish their political enemies, poor people, and people of color without trial.”

The bill adds thirty additional charges that are ineligible for unsecured judicial releases, popularly known as signature bonds. The list includes charges commonly associated with protesting, like unlawful assembly and obstruction of a law enforcement officer, and street racing, like reckless stunt driving and promoting drag races. Additionally, the bill only allows elected and appointed judges to set bond in Georgia. Currently, unelected and unappointed judges may serve in vacant positions to help courts provide speedier bond hearings.

The changes expanding cash bail were not unexpected based on previous iterations, but the last-minute addition to the final language of the bill significantly hindering the ability of individuals and organizations to pay bail on behalf of jailed people in the state came as a surprise. That addition to the bill did not appear in the state’s online legislation management system until Wednesday evening.

“No more than three cash bonds maybe posted per year by any individual, corporation, organization, charity, nonprofit corporation, or group in any jurisdiction,” the bill now reads.

This change will severely impact the operational ability of bail funds in the state of Georgia like the Atlanta Solidarity Fund. To continue paying bail for arrested individuals, Georgia bail funds would need to register as professional bail bondsman with the respective sheriffs in each county they intend to operate, which requires fingerprinting and a full background check conducted by the respective sheriffs and the FBI. Registered bail bondsman organizations are still unable to pay more than three cash bonds per year, they must instead go to a third party company to attain a surety bond.

Existing Georgia law also prohibits professional bondsmen from recommending defense attorneys to clients seeking bond. Pairing defendants with attorneys is another common function of the Atlanta Solidarity Fund.

Violating this provision will constitute a misdemeanor in Georgia.

What is at stake in Atlanta

The Atlanta Solidarity Fund, one of the largest charitable bail organizations in the country, made national news when an Atlanta Police Department SWAT team and GBI agents raided the house from which the fund operates and charged three of its organizers—including Kautz—with money laundering and charity fraud in May 2023. Georgia Attorney General Chris Carr also indicted those three organizers on racketeering charges along with 58 other individuals in August in a crackdown on a multi-year protest movement against the Atlanta Public Safety Training Center, which opponents call Cop City.

The Atlanta Solidarity Fund began operating in 2016, “with the purpose of providing resources to protestors experiencing repression,” the group said in a June press release published after the arrest of its organizers. “We ensure their rights are respected through the criminal justice system, and we provide access to representation to assist them with navigating the legal system.”

The Black Mamas Bail Out Action, a national effort, also operates sporadically in Georgia in partnership with the organization Southerners on New Ground with the intent to address racial injustice inherent to the cash bail system.

A fundraising page for The Free Atlanta Abolition Movement, described as a Black and Queer-led collective, says the group spent $1.1 million to bail out 34 people. The group says it provides bailed out individuals “with healing, legal, and mutual aid in sustainable life-affirming ways.”

Sen. Kim Jackson (D-41) also spoke on the Senate floor about how this impacts her church congregation, which frequently bails out unhoused congregants facing criminal trespass charges.

Cash bail is particularly dangerous in Fulton County, which is home to one of the deadliest jails in the country. Last year, 10 individuals died in Fulton County Jail, most of whom were held on cash bonds. A 2022 study by the ACLU Georgia found that around half of individuals detained in Fulton County’s jail system were eligible for but unable to pay bond.

Sen. McLaurin warned the cash bail expansion bill will only exacerbate overcrowding conditions in Georgia’s jails.

Tiffany Roberts, Public Policy Director for the Southern Center for Human Rights, sent an email to members of the Fulton County Board of Commissioners and Atlanta City Council Thursday evening, expressing concern that HB 63 violates the First Amendment and the Georgia State Constitution. Roberts encouraged both bodies “to vocally oppose this regressive and harmful legislation.”

Bail funds are under attack nationally

Bail funds have a long history in the United States, dating back to the Civil Rights Era, where in one case churches and community groups came together to pay Martin Luther King Jr.’s $4,000 bail for his arrest in Birmingham, Alabama.

The use of bail funds gained new prominence in the wake of the 2020 George Floyd Protest, with new funds popping up in cities all around the country to help free the hundreds of protesters arrested that summer. In response, various state legislatures began introducing legislation aimed at curtailing the success of those organizations.

“The purpose of these laws restricting and regulating community bail funds is clearly to suppress organizing and reject the expression of community solidarity,” said Pilar Weiss, Director of Community Justice Exchange, which hosts the National Bail Fund Network. “These laws have nothing to do with safety or justice and are an open attack on mutual aid and community care. As criminalization of community solidarity increases, we’re seeing an increase in attacks like this whose aim is to block and reduce any routes to freedom.”

On Wednesday, Tennessee lawmakers introduced a bill outright prohibiting courts from accepting cash bails paid on behalf of defendants by charitable bail organizations. Kentucky legislators passed HB 5 in January, prohibiting charitable bail organizations from posting bonds of $5,000 or greater. HB 486 was introduced in Virginia on Jan. 9 and would require charitable bail organizations register as a 501(c)3 and pay an additional $900 biannual registration fee to the state. Texas Governor Greg Abbot signed a law in November requiring charitable bail organizations to register with county clerks and provide monthly updates listing each defendant the fund paid bail for in the prior month. A 2022 law passed in Indiana requires charitable bail funds to pay a $300 certification fee every two years, and prohibits those organizations from posting bond for individuals accused of violent crimes or those facing felony charges with a previous violent crime conviction. The Bail Project sued the state of Indiana in federal court over its bail law, but lost the case in both the district and appeals court.

“This should be alarming to anyone who values a free society,” Kautz warned. “If paying bail is criminalized, the result will be a criminal justice system which can jail people indefinitely with no evidence, no trial and no recourse.”

Photo by Tingey Injury Law Firm on Unsplash