Georgia Bill Would Hobble Bail Funds Even as It Expands Cash Bail

By definition, people assigned bail have been judged safe to release into the general population. Requiring them to post cash bail is needlessly punitive.

A new bill in Georgia would make it more difficult for many people to get bail, both by expanding the use of cash bail and by preventing bail funds from helping out.

Under a cash bail arrangement, an arrestee must put up a cash bond to secure their release before trial. If you show up to all the hearings and the trial, you get the money back; if not, the government keeps the cash. If you can't afford to pay, you can enlist the services of a bail bondsman, who will put up the cash for you but will charge you a percent of the total, which is not refunded.

And if one can't afford to do either, then your only option is to sit in jail until the trial date—even though, by definition, the court has ruled that you could safely go free until trial. It's a needlessly punitive system in which people who have not been convicted of a crime must essentially buy their way out of jail and are penalized for not having the money to do so. Bail funds are nonprofits that put up cash on behalf of low-income defendants who cannot afford to post bail.

Currently, Georgia law establishes the criteria under which judges may release a suspect on bail ahead of trial, including considerations for whether the person poses a "significant risk of fleeing" or "significant threat or danger to any person, to the community, or to any property in the community."

State law also lists a number of "bail restricted offenses"—felonies including robbery, aggravated assault, and "pimping"—for which bail cannot be assigned "unless an elected magistrate, elected state or superior court judge…enters a written order to the contrary specifying the reasons why such person should be released upon his or her own recognizance."

The law includes a stipulation that "the term 'bail' shall include the release of a person on an unsecured judicial release," which is defined as any release that does not require the person to pay a bond or surrender property.

Georgia Senate Bill 63, which has passed both chambers of the General Assembly and could soon become law if signed by Gov. Brian Kemp, amends those statutes to make the entire bail process more difficult. If enacted, the bill would change the definition of bail to "only include the release of a person by the use of secured means," such as cash bail, "professional bondsmen…or property."

The bill would also add over 30 new charges to the list of "bail restricted offenses," ranging in severity from voluntary manslaughter to criminal trespass to setting up or participating in drag races. The list would even include failure to appear in court, "provided that such offense is the person's second or subsequent offense."

It would also remove the judge's discretion, mandating that "no person charged with a bail-restricted offense shall be eligible for release by any judge on an unsecured judicial release."

Even more perniciously, S.B. 63 includes a targeted attack on bail funds. The bill would add language to state law that "no more than three cash bonds may be posted per year by any individual, corporation, organization, charity, nonprofit corporation, or group in any jurisdiction."

In other words, the bill would require that countless more offenders be subject to cash bail while simultaneously making it nearly impossible for anyone to bail them out.

Tiffany Roberts, public policy director of the Southern Center for Human Rights, told WABE on Tuesday that the bail restriction was "an infringement on free speech, because [the Supreme Court] has said corporations are people and that money is speech. So then, how do you impair the ability to express yourself, your will, by donating money to causes that you find worthy?"

S.B. 63 "unconstitutionally criminalizes poverty and restricts conduct protected by the First Amendment, and the ACLU of Georgia will sue if the governor signs this bill into law," that organization's legal director, Cory Isaacson, said in a statement.

Opponents of the bill feel that it targets protesters, specifically those opposed to the Atlanta Public Safety Training Center, a police and fire training facility currently under construction on city-owned land in a nearby forest, which opponents derisively call "Cop City." Three of the 61 defendants indicted last year operated the Atlanta Solidarity Fund, a bail fund used by many of those arrested while protesting Cop City.

S.B. 63 also adds racketeering, criminal trespass, domestic terrorism, and destruction of property to the list of "bail restricted offenses," all of which the Cop City protesters have been charged with or arrested for.

"It certainly appears to be part of a broader trend," Roberts said. "This bill predates many of the Cop City indictments—however, this language about bail funds did not exist in this bill prior to last week."

Regardless of the motivations, cash bail is an unnecessarily punitive system that punishes defendants more for being poor than for being dangerous or recidivist. If passed, S.B. 63 would lead to more people incarcerated, even as the state's jails face overcrowding. When the bill reaches Kemp's desk, he should veto it without hesitation.