3 Reasons Charitable Bail Funds Are Safer, More Just, and More Beneficial to Communities Than Commercial Bail Companies

For decades, charitable bail funds have played a critical role in the pretrial process, disrupting the two-tiered system where people with wealth can buy their way out of jail, regardless of safety considerations in their case, while thousands of people who can safely be released languish in jail simply because they lack the money to buy their freedom. In recent years, charitable bail funds have been stymied by the commercial bail industry through baseless and opportunistic political attacks that aim to paint them as a threat to public safety. The commercial bail industry has actively encouraged states to implement new laws that make it harder, or even impossible, to operate. These efforts are not motivated by an interest in safety but rather an interest in protecting and expanding the industry’s client base.

Most people who are arrested receive an initial hearing where bail is assessed long before they go to trial. In many cases, cash bail is arbitrarily assigned in lieu of a meaningful investigation of factors that may affect public safety upon release, making wealth, rather than ensuring the safety of the public, the priority.¹ If cash bail is assigned during that hearing, an individual must pay a set amount of money to be released from pretrial detention; if they cannot afford to pay, they remain in jail. Many people lack the resources to pay the cost of  bail, which has resulted in a situation where 80 percent of people in jail are legally innocent—awaiting trial and not yet convicted of a crime.² Most of those people could safely return home while awaiting the resolution of their case, but they are denied the opportunity to remain with their families, keep their jobs, and fulfill community obligations.

People unable to scrape together the necessary portion of their bail amount, even by relying on family and friends for support, often turn to commercial bail companies to help secure release. In fact, commercial bonds are the most common way of gaining pretrial release.³ Because of cash bail, thousands of people who cannot afford their bail amounts and have yet to have their day in court are forced to choose between two unjust options: remaining in jail, separated from their families and communities, and entering into a predatory commercial bail agreement that will likely take years to repay.

Commercial bail companies are for-profit businesses that make money from arrested individuals by requiring clients to pay a percentage—typically 10 percent⁴—of their assigned cash bail amount upfront, also known as a nonrefundable premium, to the company instead of to the court. In exchange, the company enters an agreement with the court, assuring that it will pay the outstanding bail amount if its client fails to appear for trial, though they are often able to pass this cost off to clients. Under the guise of providing support, commercial bail companies prey on people’s desperation and subject them to unethical conditions and practices, including predatory contracts and harassing behavior that jeopardize their economic and sometimes physical well-being, all in the name of profit.⁵

Recognizing the lack of safe and equitable alternatives to paying unaffordable cash bail, communities nationwide have banded together to develop and implement charitable bail funds. Unlike profit-driven commercial bail companies, charitable bail funds are nonprofits, or other groups without profit motives, that pay bail free of charge on the client’s behalf. When a commercial bail company bails someone out of jail, it enters an agreement with the court but is not required to pay any money upfront. When an individual or a charitable bail fund pays a person’s bail, the individual or fund must be able to pay the amount required by the court before the person’s release, creating a unique barrier to supporting people pretrial that for-profit bail companies do not face. When people show up to court, the charitable bail fund has its money returned, allowing it to use the same funds over and over to bail people out without cost to them. A charitable bail fund may also offer court reminders or services that help stabilize people’s lives and support them well beyond the pretrial period, which can improve public safety in the short and long terms. While charitable bail funds typically rely on community donations for their operations, large international insurance companies support the commercial bail industry.⁶ Charitable bail funds recognize the harms of the status quo system that relies on cash bail and the unethical and predatory practices of the commercial bail industry, particularly for people with the fewest financial resources. Charitable bail funds are a stopgap measure for long-lasting pretrial reform that centers safety and justice rather than monetary gain. They are a bright light in a system that prioritizes profit over safety and fairness, and they offer another choice to thousands of people faced with an impossible choice.⁷

Although awareness of and support for charitable bail funds are growing, the concept of a bail fund dates back hundreds of years. Historically, it has been linked with countering systemic injustices such as enslavement, protest-based arrests, and mass incarceration. Charitable bail funds were first established to buy freedom for enslaved people⁸ and later used as a way to free activists in various political movements, such as those protesting the Red Scare and those participating in the civil rights movement.⁹ The first organized, large-scale bail fund was created in 1920 by the American Civil Liberties Union.¹⁰ Today, there are more than 100 bail funds across the United States working to ensure that pretrial freedom is not dependent on a person’s financial status.¹¹

In response to the growing popularity of charitable bail funds and in an effort to limit potential competition, the American Bail Coalition (ABC), the primary lobbying arm for the commercial bail industry, called for creating onerous and unnecessary regulations for charitable bail funds.¹² In 2021,¹³ 2022,¹⁴ and 2023,¹⁵ ABC released model legislation for states to place restrictions on charitable bail funds, groups, and individuals who post bail for more than two people in 180 days. Notably, the requirements that ABC suggests for charitable bail funds would not apply to commercial bail companies and are more stringent than those regulating commercial bail. Since the release of ABC’s model legislation, states across the country have introduced and passed look-alike legislation imposing harmful requirements on bail funds that, in many cases, eliminate their ability to operate in entire states and force residents of those states to rely solely on predatory commercial bail companies. Last year, Rep. Scott Fitzgerald (R-WI) introduced a bill in Congress—the Keeping Violent Offenders Off Our Streets Act¹⁶—that sought to inappropriately classify posting bail as the “business of insurance,” thus creating criminal penalties for charitable bail funds that fail to meet insurance regulations.¹⁷

Recent legislative efforts to regulate charitable bail funds will not improve safety or fairness but rather are a veiled attempt to limit competition for commercial bail companies. These regulations take away a lifeline for thousands of people who could safely remain in their communities pretrial but cannot afford cash bail. Below are three ways charitable bail funds offer a safer and more just alternative to commercial bail companies.

When deciding who to take on as clients, commercial bail agents are primarily concerned with one factor: profit potential. Because commercial bail companies base their fee structure on a percentage of a jailed individual’s total cash bail amount, they are incentivized to take on clients with higher cash bail assignments, which usually involve more serious offenses. Conversely, commercial bail agents often decline to take on cases of people with low bail amounts, which are typically associated with lower-level charges, claiming that low-bail individuals are “risky and unprofitable.”³⁴ This argument masks the reality that commercial bail companies rarely have to pay when their clients fail to appear because they are able to pass those costs onto the client or co-signers to their agreement.³⁵ As a result, individuals with more minor charges remain incarcerated simply because they lack the resources to afford bail and are unattractive to commercial bail companies.

The commercial bail industry claims to ensure safety during pretrial release, but in fact, bail agents have little incentive to support their clients during the pretrial period or to ensure that they appear in court as required. They bear no financial or legal responsibility if a client commits another crime while released—and can benefit from a client’s rearrest, as they are often able to collect an additional premium for the new charge.³⁶ This can result in bail agents bailing out people accused of more serious offenses because it is better for their bottom line.

While commercial bail companies operate to generate greater profits each year, charitable bail funds typically operate as revolving funds, where the same money is used over and over again with no profit motive.³⁷ Unlike commercial bail companies, which because they post no bond upfront rarely have to pay even when their clients fail to appear, charitable bail funds lose the money they put down for bail if someone fails to appear. This provides an incentive for charitable bail funds to ensure that their clients’ needs are met and that they appear in court. Additionally, because charitable bail funds are not concerned with making a profit, they are not disincentivized from taking on clients accused of minor offenses and thus have low bail amounts, unlike commercial bail companies.

Charitable bail funds also improve safety by helping people avoid the harm of pretrial detention. Pretrial detention is known to increase future rates of rearrest, destabilize families, and create conditions that undermine housing and economic stability, which are factors known to make people less safe.³⁸ Because of this, pretrial detention has been found to be “criminogenic,” meaning that it is a factor that increases the likelihood of crime.³⁹ Pretrial release, on the other hand, helps prevent the loss of employment, housing, social connections, and other important factors that prevent crime. Charitable bail funds improve safety by facilitating swift release and help prevent the harms of unjust pretrial detention from disrupting people’s lives.

As mentioned previously, commercial bail companies typically require a 10 percent premium upfront. Commercial bail companies retain this premium even in cases where charges are never filed, are dropped, or when a client is found not guilty. For many individuals, even a 10 percent premium is unaffordable. Some commercial bail agents offer payment plans that allow people to pay a smaller portion of the 10 percent and pay the remaining amount over time. Although this may appear to be beneficial, these contracts often have unreasonably high interest rates, sometimes as high as 30 percent.⁴⁰ Some individuals and families sometimes are forced to forgo necessities such as rent or groceries to pay commercial bail fees.⁴¹ Others are trapped in lifelong debt.⁴² Each year, the commercial bail industry engages in unethical practices to extract more than $2.4 billion in profit⁴³ from legally innocent people, often perpetuating or exacerbating financial instability among clients.

Charitable bail funds, by contrast, provide bail payments to the court with no financial strings attached, helping minimize the financial impact of arrest and empowering people to use their money for necessities. Charitable bail funds also typically offer or connect people to valuable supplemental services focused on addressing the underlying issues that led to an arrest, including economic or housing instability. To that end, many charitable bail funds enroll individuals in benefits, such as health insurance or food assistance; connect them to housing relief programs and employment services; or provide case management for individuals with mental health or substance use disorders. These services can help ensure personal and financial security well beyond the pretrial phase, reducing the likelihood of future arrest and increasing public safety. Some charitable bail funds also provide individuals with court reminders, child care, and transportation to and from court, recognizing that most missed court dates are a result of daily responsibilities or resource barriers, not willful attempts to avoid prosecution.⁴⁴ Studies have shown that court reminders increase appearance rates in places such as Cook County, Illinois; New York City; and Nebraska.⁴⁵ Commercial bail companies do not provide individuals with similar free supportive services.

The commercial bail industry has used its political power over the past three decades to entrench unjust cash bail practices and support policies that have resulted in the rapid expansion of needless pretrial incarceration.⁴⁶ The industry has proposed and supported policies that make it more difficult for people to be released pretrial without a cash bail assignment in order to maintain or grow their potential client base.⁴⁷ This practice of indiscriminately expanding the population of people eligible for bail has resulted in the incarceration of thousands of people across the country who are unable to afford bail, more than the commercial bail industry could ever bail out. This expansion has come at a high cost to individuals, families, and entire communities. The United States spends an estimated $38 million each day to incarcerate people pretrial.⁴⁸ When accounting for direct and indirect costs, the actual cost of pretrial incarceration is estimated to be around $140 billion annually.⁴⁹ Incarcerating people pretrial is significantly more expensive than providing resources to support them in their communities. According to the Administrative Office of the U.S. Courts, the relative cost of pretrial detention is about $92 per day, while pretrial supervision costs about $11 per day.⁵⁰

From the 1970s to 2009, the pretrial population increased a shocking 433 percent.⁵¹ The burden of increased pretrial incarceration has fallen disproportionately on Black people. Black people are more likely to be assigned cash bail and are assigned higher amounts than their similarly situated white peers.⁵² This has resulted in significant racial disparities in who is forced to use commercial bail agents and who is incarcerated.⁵³

Conversely, charitable bail funds operate with the explicit purpose of reducing the number of unnecessarily incarcerated people, which can result in significant cost savings for jurisdictions. Charitable bail funds also help those facing racially biased cash bail assignments access pretrial release. Some bail funds even have targeted bailout campaigns, such as those for Black mothers⁵⁴ and fathers,⁵⁵ to reduce the burdens of racial injustice in the pretrial process. Charitable bail funds can fund supportive services through their donations, while people who commercial bail companies release often still rely on taxpayer-funded pretrial services, increasing costs to jurisdictions. While the commercial bail industry pushes legislation that makes it harder to be released pretrial, charitable bail funds push for legislation that reduces reliance on and costs of pretrial incarceration.

Charitable bail funds are critical in making criminal legal systems more just and communities safer. They remove the profit motive from the pretrial process and reduce the harms of mass pretrial incarceration by paying bail for those who are legally presumed innocent, who cannot afford it, and who otherwise would remain in jail or fall prey to predatory commercial bail industry practices. Jurisdictions must ensure that the commercial bail industry, in its lust for profit, is not allowed to impede charitable bail funds’ efforts to help improve safety and justice in the pretrial process. Nationwide efforts should be made to guarantee that charitable bail funds can operate at full capacity. State and local legislators must defend their jurisdictions against harmful legislation restricting charitable bail funds’ ability to offer a more equitable alternative to commercial bail and provide much-needed pretrial support.