Georgia’s new cash bail law seeks to punish the poor — and protesters, too

In a troubling move that overturns criminal justice reforms passed in 2018, Georgia Gov. Brian Kemp signed into law Wednesday a Republican-backed bill expanding the use of cash bail. Starting July 1, judges will be required to set bail in cases where previously they could have decided to release people without financial conditions. People who are legally presumed innocent but can’t afford to pay bail will be stranded in jail on charges for minor, nonviolent misdemeanor offenses that wouldn’t require incarceration if they were convicted. Even worse, the law simultaneously attacks charitable bail funds, one of the only lifelines that low-income residents have in these situations.

The law simultaneously attacks charitable bail funds, one of the only lifelines that low-income residents have in these situations

The law will restrict charitable bail funds, and even individuals, from helping more than three people in need of bail assistance per year and subject them to criminal charges if they don’t comply. None of these restrictions will apply to for-profit bail bond agents, who charge a 10% premium for their services, and who rarely face the same levels of scrutiny that bail funds do. Without charitable bail funds, more poor Georgians will be forced into often-predatory contracts with bail bond agents to get their loved ones out of jail.

Charitable bail funds across the country have found themselves caught in conservatives’ crosshairs. Last year, after people protested for months against the construction of a $109 million police training facility in Atlanta, law enforcement agents arrested nonprofit workers with the Atlanta Solidarity Fund. That charitable bail fund had been providing bail assistance to those who’d been arrested while protesting. The arrests were deemed by some as an excessive display of force.

Charitable bail funds are being increasingly targeted, despite their humanitarian missions and despite the historic role such organizations have had in human and civil rights movements since the 1920s.

Georgia’s new law will have disastrous consequences for some of the most vulnerable people in the state, protesters or otherwise. Parents will lose custody of their children. People will be evicted from their homes and fired from their jobs. Those struggling with their health — physical and mental — will decline. People of color and individuals living in poverty will be most affected. The effects of pretrial incarceration will destabilize individuals and families for years to come.

The Bail Project launched in 2018, and since then we’ve provided free bail assistance and voluntary supportive services to more than 30,000 low-income Americans. Our clients have returned to 91% of their court dates, a statistic that lays waste to the argument that cash bail is necessary to incentivize a person’s return to court. Take our client, Sherry Baird, an Atlanta-based 61-year-old. She was arrested and incarcerated pretrial for nearly a month because she couldn’t afford $11,200 in bail. It’s been two years, and she has not been indicted for a crime. Had The Bail Project not intervened, she would likely still be behind bars today, having not been convicted of anything.

Georgia’s new law will have disastrous consequences for some of the most vulnerable people in the state, protesters or otherwise.

Baird’s situation is not a one-off. Georgia jails are in crisis — buckling under long case-processing delays, overcrowding and inhumane conditions. Amid this crisis, we’ve supported nearly 1,500 legally innocent Georgians, the majority of whose cases have still not reached trial, been dismissed, or had a plea deal accepted after two years. Some have cases that have gone on for more than 900 days without resolution — which is two to four times longer than cases in other states where we operate. Without our help, many of our clients would have been exposed to the incredible harms of unnecessary incarceration because of these case delays; others would have succumbed to the tremendous pressure to accept plea deals even when they’re innocent, forfeiting their right to a trial just to get out of jail.

Bail is an important, yet highly misunderstood, aspect of our pretrial system. One common misconception is that bail is designed to keep people locked up before trial, but that’s wrong. Bail was designed as a mechanism of release. When cash bail is misused to detain people, it distorts the judicial process by letting people with money out of jail and keeping in jail people who don’t have money. Public safety, not wealth, should determine who is detained pretrial.

In recent years, at least a dozen jurisdictions have minimized or eliminated the use of bail in some capacity. Illinois has totally eliminated it. Across these jurisdictions, there has been no statistically significant increase in rates of pretrial rearrest or nonappearance. In fact, in some counties, reducing bail actually improves community safety. In Harris County, Texas — home to Houston — for instance, the volume of people being arrested and rearrested declined over time and the misdemeanor system as a whole has shrunk. The overall effect is likely because needlessly incarcerating people pretrial only destabilizes them. In other words, the supposed treatment — incarceration — is actually harmful.

Research shows that a stay in jail as short as 48 hours increases the likelihood of a person being incarcerated again in the future because of the attendant job loss, residential instability, financial insecurity and exacerbation of physical and mental health that results from incarceration. In the field of medicine, this type of result would cause doctors to immediately reverse course. This is strong evidence that our courts and communities can safely function without the harmful practice of setting cash bail.

Even against this backdrop of successful reform, efforts to usher in a fairer and more equitable pretrial system still face considerable pushback.

But even against this backdrop of successful reform, efforts to usher in a fairer and more equitable pretrial system still face considerable pushback. Lawmakers in at least 14 states — including Indiana, Missouri and Wisconsin — introduced about 20 bills in 2023 to increase the use of cash bail. Just last month, Kentucky lawmakers voted to override Gov. Andy Beshear’s veto of HB 5, a law criminalizing poverty and homelessness by increasing penalties for sleeping on the street if you’re homeless and for possessing certain narcotics. Decisions by these legislatures serve to only prop up the two-tiered system of justice created by cash bail, where if you’re rich you’re released pretrial, but if you’re poor, it’s a different story.

Charitable bail funds, much like food pantries, pool resources to support the most vulnerable, thereby closing the gap between insufficient service provision by government and the unmet needs of our friends and neighbors. In many ways, charitable bail funds help show what our pretrial system should and could be.

However, The Bail Project is one of several charitable bail organizations that will be prevented from supporting vulnerable Georgians because of this new law. Given how case delays plague the state’s criminal justice system, this law will only further congest Georgia’s overcrowded and deadly jails, subjecting countless numbers to needless suffering. Instead of advancing smart policies that reduce the grip of wealth in our pretrial system, lawmakers in Georgia have chosen to turn their backs to evidence, opting to politicize the issue of cash bail and strike a blow against protests for shortsighted political gain.