Bail nullification.

Author:Simonson, Jocelyn

This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge's determination that a certain amount of the defendant's personal or family money was necessary to ensure public safety and prevent flight. This growing practice--what this Article calls "bail nullification"--is powerful because it exposes publicly what many within the system already know to be true: that although bail is ostensibly a regulatory pretrial procedure, for indigent defendants it often serves the function that a real trial might, producing guilty pleas and longer sentences when an individual cannot afford to pay their bail. By examining the ways in which community bail funds serve the functions that a nullifying jury might--allowing popular participation in an individual case to facilitate larger resistance to the policies and practices of state actors--this Article argues that community bail funds have the potential to change how local criminal justice systems operate on the ground, shifting and shaping political and constitutional understandings of the institution of money bail. Community bail funds give a voice to populations who rarely have a say in how criminal justice is administered, especially poor people of color. And the study of bail funds helps point toward other ways in which bottom-up public participation can help create a criminal justice system that is truly responsive to the communities that it is ultimately supposed to serve.

Table of Contents INTRODUCTION I. COMMUNITY NULLIFICATION IN A POST-TRIAL WORLD A. Jury Nullification as Community Nullification B. The Rise of Community Bail Funds C. Bail Nullification II. REDEFINING COMMUNITY IN THE SETTING OF BAIL A. Community Safety B. Community Ties C. When the "Community" Posts Bail III. BAIL NULLIFICATION AND LEGAL CHANGE A. Political Change B. Constitutional Change IV. SUBVERSION OR LEGITIMATION? A. Rule of Law Concerns B. The Risk of Legitimation CONCLUSION INTRODUCTION

Scholars have long studied the power of community actors to nullify official decisions by state actors in the criminal justice system. (1) This scholarship analyzes "nullification" as a process involving jurors: when citizens on a jury acquit someone despite their legal guilt, the jurors make a potent statement about a particular defendant or law, in the process transferring power from legislatures, judges, and prosecutors to a small group of citizens. (2) This focus on the jury as a site of nullification is understandable--jury nullification has been a prominent feature of American criminal justice since the country's founding, and the jury plays a singular role as the ultimate moment of community input into a criminal case. (3) But the power of the jury is waning. In our post-trial world, fewer than five percent of criminal cases end in a trial of any kind, (4) and the public at large has little input into the workings of everyday criminal adjudications. (5) If something akin to nullification could take place outside of the jury room, it would open up room for community input into the reality of criminal justice today: in the words of the Supreme Court, "a system of pleas, not a system of trials." (6)

In this Article, I argue that a form of community nullification can and does occur in the interstices of pretrial procedures and criminal case outcomes in the form of community bail funds. In recent years, community groups in jurisdictions across the United States have increasingly begun to use bail funds to post bail on behalf of strangers, using a revolving pool of money. These funds include new charities set up in partnership with public defender offices in Massachusetts, (7) the Bronx, (8) Brooklyn, (9) and Nashville (10) as well as identity-based bail funds that range from a bail fund for transgender sex workers of color in Queens, New York (11) to a bail fund supporting communities of color targeted by policing in Chicago, (12) and bail funds formed by activists within the Movement for Black Lives, (13) who have used crowd-sourced funding to post bail for hundreds of protesters and allies in Ferguson, (14) Baltimore, (15) Cleveland, (16) Oakland, (17) and Baton Rouge. (18) Each time a community bail fund pays bail for a stranger, the people in control of the fund reject a judge's determination that a certain amount of the defendant's personal money was necessary for the defendant's release. (19) This can, at times, serve a function analogous to jury nullification: what this article calls "bail nullification." (20)

The analogy between community bail funds and nullifying juries is necessarily an imperfect one. Jury nullification is a longstanding communal power, protected by the Constitution, with undeniable results on case outcomes. The communal decision that bail funds make, in contrast, cannot be as neatly classified as a choice between conviction and acquittal, nor does the process enjoy constitutional protection. When community bail funds nullify the law, it is not the formal law on the books, but rather the law on the ground: the discretionary decisions of prosecutors and judges that render bail a tool of pretrial detention rather than a mode of release. Moreover, community bail funds vary enormously in how they function--some are run by mobilized grassroots groups intent on abolishing the criminal justice system as we know it, while others operate as more of a private, pretrial-services agency, making sure that their neighbors return to court on time. (21) In this article, however, I engage in a sustained argument that community bail funds can and often do serve as a form of community nullification. This analogy facilitates an exploration of the power of a practice that is otherwise easy to dismiss as a mere extension of the ability of families, friends, and bail bondsmen to post bail in individual cases. By examining the ways in which community bail funds serve the functions that a nullifying jury might--allowing popular participation in an individual case to facilitate larger resistance to the policies and practices of state actors--I argue that community bail funds have the potential to contribute to legal and political change from the ground up.

Community bail funds inject community input into a critical moment in the public adjudication of a criminal case. For most indigent defendants, bail is the ballgame: if a judge sets bail in an amount that they can afford, then they are able to fight their case from a position of freedom, without losing jobs, housing, or custody of their children. (22) On the other hand, if bail is set in an amount higher than a defendant can pay, that defendant is incentivized to plead guilty early in the process, without the benefit of extended discussions with counsel, case investigation, or discovery from the prosecution. (23) Studies have shown time and time again that pretrial detention increases the chances of a conviction, extends the probable length of a sentence, and decreases the chance that the charges will be dismissed altogether. (24) Moreover, as the public learned in the summer of 2015 with the deaths of Kalief Browder in New York City and Sandra Bland in Texas--both of whom had been in jail because they could not pay bail--jail is often a violent and damaging place. (25) When community bail funds post bail, they are not only facilitating the liberty of a defendant, they may also be changing the eventual outcome of that criminal case.

Over time, as community bail funds post bail for multiple defendants, these individual acts can add up to a larger statement about the fairness of money bail. Literal action--the posting of bail--itself becomes a form of on-the-ground resistance to the workings of the criminal justice system. The result is a powerful form of popular input into criminal justice from outsiders who rarely have a say in how their local justice systems are administered. Moreover, because they operate publicly, community bail funds are able to engage with political and constitutional principles in ways that juries cannot.

When they engage in "bail nullification," community bail funds have the potential to shape and shift legal meaning in at least three important ways. First, community bail funds contest the meaning of "community" in the setting of bail. The prominent conception of a judge's bail decision is of a balancing game between a defendant and the community: a judge must weigh an individual defendant's interest in liberty and presumed innocence against the community's interest in preserving safety and making sure the defendant returns to court. (26) But when a "community" group posts bail, it calls into question the widespread assumption that the community and the defendant sit on opposite sides of a scale of justice. Second, community bail funds shift the conversation about the constitutional limits on money bail. In particular, community bail funds undermine the bedrock assumptions of a constitutional jurisprudence that has traditionally held that money bail systems do not violate the Excessive Bail (27) or the Due Process Clauses, (28) and has only just begun to consider the ramifications of modern money bail for Equal Protection. (29) And third, bail nullification has a demonstrable effect on political and legislative change. (30) Community bail funds provide to the public real-life examples of indigent defendants returning to court without having undermined public safety, despite an expert judicial determination that personal money was needed to prevent flight and mayhem. (31) The aggregate effect is to send a message to judges and to policymakers that something is awry in the current legal scheme governing bail.

Although prominent critics...

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