Using Bail as Ransom Violates the Core Tenets of Pretrial Justice

Rebecca Gill was out of options. At 39 years old, she was arrested and though not convicted of a crime and presumed innocent, confined to a jail cell. This happened because of a cash bail requirement that she couldn’t afford. Her friends didn’t have extra money to help, and she was unlikely to see a judge until she’d been in jail for two full weeks.

Stuck in jail, she was in jeopardy of losing her job and her driver’s license. Losing her license would result in myriad consequences, such as preventing her from getting to work and making it more difficult to take care of her son and mother.

Thankfully, the Nashville Community Bail Fund paid Rebecca’s bail, allowing her to keep her job, her license, and return to her family. The Bail Fund’s work has alleviated tremendous suffering on the part of those incarcerated and their loved ones, reduced the length of time in jail for their participants, improved outcomes, and saved taxpayer dollars. But a local Nashville policy threatens the rights of people like Rebecca, and sets a concerning precedent that could have implications for bail funds nationwide.

Today, the ACLU, Civil Rights Corps, and the Choosing Justice Initiative are standing up to that policy. Together, we are suing in federal court to challenge the constitutionality of the rule and ensure that the Nashville Community Bail Fund is able to continue its important work helping people like Rebecca.

Under the local rule, developed by the Davidson County Criminal Court judges and clerk, anyone trying to post bail on behalf of a friend, loved one, or community member must agree that the money posted is subject to garnishment for any future debts assessed in the case. In other words, anyone paying cash bail must agree that the defendant’s court costs, fines, fees, or restitution can be deducted from their cash bail deposit.

In this manner, the county and local government force people who are at their most vulnerable — stuck in jail, and legally innocent — into an unconstitutional agreement. Furthermore, by extracting this promise to pay court debts using the same money posted to facilitate pretrial freedom, government officials ensure access to revenue by taking a cut of the cash bail deposit.

Let’s say someone is arrested for a crime and ordered to pay a $3,500 bond that they are unable to afford. Their family and friends are then able to put that $3,500 together. Under local policies in Davidson County, that money would only be accepted if the family and friends posting the bond agreed that their money could be used to pay any fines, fees, or costs assessed against their friend in the future. If they don’t agree to this, their loved one remains in jail.

When the founders of our country enshrined the concept of bail into our constitution, it was intended to be a method of facilitating pretrial freedom and reasonably incentivizing incarcerated people to return to court to face charges levied against them. Using bail as ransom money or to generate revenue violates the core tenets of a system of pretrial justice.

In many instances, the money posted as bail doesn’t belong to the arrestee themselves, but is collected by friends, family, and other community members. Using the pressure of jail to force these parties to pay a loved one’s debts — lest they remain incarcerated — is not only illegal, it’s unfair.

Local governments across the country in places like Tennessee, Florida, Alabama, Michigan, and Wisconsin impermissibly use money bail to pay fines, fees, and other debts. These garnishment practices have not been challenged in court in decades.

Bail garnishment policies drive pretrial incarceration with a slurry of related negative consequences both for the individual and the system. These consequences include job loss, the inability to care for family members, exposure to violence in jail, a higher likelihood of pleading guilty, increased long-term recidivism, increased failures to appear in court, and waste of public funds on needless incarceration.

Historically, when a Nashville Community Bail Fund participant completed their case, their bail money was refunded and returned to a rotating pool of cash so the fund could assist the next person. Davidson County’s criminal court judges recently took that option away without any logical reason. Without intervention, the Bail Fund will eventually lose its entire rotating fund and be forced to close.

Since it began operating in 2016, the Bail Fund has freed more than 1,000 people who were incarcerated because they could not come up with $5,000 or less in exchange for their liberty. Several other such bail funds exist across the country. Davidson County’s policy poses a roadblock to these organizations’ crucial work.

The Nashville Community Bail Fund and the ACLU envision a world in which pretrial detention is so rare that there is no longer a need for charitable bail funds. Until that point, bail funds like Nashville’s provide a crucial lifeline. If the fund is forced to close now, thousands of Nashvillians will be left without assistance.

This senseless policy violates the U.S. Constitution. We’re suing to ensure that the work of the Nashville Community Bail Fund and other bail funds across the country are allowed to continue, uninhibited by government officials’ attempts to turn cash bail deposits into a revenue stream.