Right-Wing ALEC Bolsters Destructive For-Profit Bail Industry

The American Legislative Exchange Council (ALEC) is helping the for-profit bail industry push legislation in four states to restrict or outright eliminate charitable bail funds, which provide those unable to afford bail with enough cash to avoid being imprisoned while awaiting their day in court.

Led by the American Bail Coalition (ABC), the commercial bail industry sees the growth of charitable bail funds as a threat. The national trade group, which opposes bail reform efforts across the country, is also one of ALEC’s key corporate members. Last fall, ABC provided platinum-level sponsorship of ALEC’s ritzy 50th anniversary gala; its chairman, Bill Carmichael, is the vice chair of ALEC’s private sector board of directors; and an ABC representative sits on ALEC’s Criminal Justice Task Force. Since joining the pay-to-play legislative bill mill in the early 1990s, “ABC has written 12 model bills fortifying the commercial bail industry,” the group claimed in a 2010 newsletter.

Charitable bail funds post bail to secure pretrial release for people who couldn’t otherwise afford it. Many groups, such as the Atlanta Solidarity Fund, also operate with the specific purpose of assisting activists who often face arrest for public protests and end up in jail when unable to pay steep cash bail amounts.

Model policy developed by the ABC cautions that “in the past few years, the [charitable bail] funds have nationalized, and are now operating in [a] fashion to destabilize the bail system.”

The bills targeting charitable bail funds — which are currently being considered by lawmakers in Georgia, Kentucky, Washington, and Virginia — call for imposing general reporting and registration requirements, setting a maximum amount of bail that a fund can cover, and/or limiting the number of times a charity can post bail to just three per year, which would effectively shutter its operations.

“Restricting the operations of charitable bail organizations is like closing down a food pantry and claiming you’re curing hunger,” says Jeremy Cherson of the Bail Project, a national nonprofit that advocates for the elimination of cash bail while also providing bail and support services.

Instead of investing in support services, “lawmakers in these states have pursued shortsighted solutions that stick with the status quo of cash bail,” he points out. That, in turn, “leads to unnecessary incarceration and all its attendant consequences like job loss, family separation, and housing instability, which only makes cities and states less safe.”

Critics of the cash bail system repeatedly warn that curtailing the operations of bail funds disproportionately impacts poor and working-class Black and brown people.

The for-profit bail bond industry generates as much as $2.4 billion in annual revenue, according to U.S. industry estimates, with more than 2 million people entering into contracts with private bail bondsmen every year. The top six bail insurers control 76% of the market, according to reporting by Reuters.

The U.S. and the Philippines are the only countries in the world with commercial bail industries. Bail bond agents charge people who can’t afford bail a non-refundable fee — usually 10% of the set amount — to ensure that bail will be paid in full if the defendant doesn’t show up in court. Defendants frequently borrow money from bail bondsmen at predatory interest rates to cover their fees. The profits from these exorbitant rates are split between the bail bondsman and the insurers that provide the financial backing.

The heightened focus on charitable bail organizations comes amidst other corporate-funded assaults on the right to protest and ongoing threats from 2024 presidential candidate Donald Trump to deploy the military against civilian protesters.

A Center for Media and Democracy (CMD) analysis of current and recent bills that seek to curtail the operations of charitable bail funds found that the ABC has likely used its ALEC connections with state lawmakers to advance these pieces of legislation.

The Bail Industry’s Playbook

The number of bills seeking to regulate or restrict the operations of charitable bail organizations skyrocketed in 2020 after nationwide protests in the wake of George Floyd’s murder in June of that year. When donations poured in to bail funds across the country, some of the accompanying media attention focused on certain funds that had bailed out individuals accused of committing violent crimes.

By the end of the year, the ABC had published a briefing document calling for the regulation of charitable bail funds. “During 2020, these funds grew in popularity due in large part to celebrity and political endorsements aimed at posting bail for those arrested during the violent protests across the country which began after the George Floyd incident,” the document states. “With a warchest perhaps as high as $200 million nationally, these funds are now a major issue in bail and pretrial release,” and are being used “to destabilize the bail and criminal justice system.”

Critics of the commercial bail industry counter that the for-profit business is far more detrimental.

“The payment plans, the 10% fees, the collateral bail bonds agents extract — those are the types of disruptions that take people years to recover from,” the Bail Project’s Cherson told CMD.

The ABC, which has an annual revenue of $2.3 million according to its most recent tax filings, consists of five surety insurance companies that pay steep membership dues.

In late 2021, the coalition published a model policy on how to regulate the charitable bail industry. The aim of the model bill was to hamstring charitable bail funds by putting into place preliminary reporting and regulatory requirements. It was based on a bill that passed in New York — the first state to enact restrictive legislation — along with legislation introduced in Texas and Indiana.

ABC has gone so far as to suggest that charitable bail funds may not be legal because they leave “the defendant [with] zero financial incentive to show up in court.”

The coalition spent more than $1 million on lobbying in 2022, according to its most recent tax filings, nearly double what it spent in 2020. A Reuters investigation found that in 2020 insurance companies spent $17 million “to defeat proposals to weaken or abolish the for-profit bail industry in the United States” — an industry that “brings insurers $15 billion in business a year.”

Georgia’s Crackdown

Georgia’s SB 63, which has been passed in both legislative chambers, would prevent charitable funds from posting more than three cash bonds per year and require them to have their application approved by a local sheriff’s department. It would also dramatically expand the number of bail-restricted violations — including unlawful assembly, which is often used as a dragnet to include peaceful protest. A previous, less expansive version of the bill was proposed in 2022, but failed to pass.

A spokesman for Governor Kemp’s office said that the legislation is “undergoing a thorough review process.”

In a recent statement about the bill, Tiffany Williams Roberts, public policy director of the Southern Center for Human Rights, notes that “given the history of bail funds in many civil and human rights movements in Atlanta, SB 63 represents another violent attack on the right to political dissent, which, unfortunately aligns with Atlanta’s current repression of social movements that challenge the criminal legal system.”

Two of the bill sponsors, Republican senators Frank Ginn and Stephen Gooch, are members of ALEC, with Gooch serving as an ALEC state chair. Its House co-sponsor, Rep. Houston Gaines (R), is also an ALEC member who has delivered on other ALEC priorities such as preempting local democratic control over law enforcement budgets.

Speaking on the House floor earlier this month, Gaines repeatedly referred to defendants — regardless of what they were charged with — as criminals who are “not showing back up for court, and staying on the streets,” framing his attack with rhetoric that echoes the industry’s talking points.

According to a recent ABC statement, “Georgia has come up with what is really a very simple floor for these dangerous criminals — they aren’t getting out of jail free without some assurance that they will show up for court and answer for the charges.”

Charitable bail funds are “unaccountable,” Gaines said in claiming that these organizations are responsible for releasing “violent criminals on our streets.”

The ACLU of Georgia has said that it will sue the state if Kemp signs the bill.

Other States with Pending Legislation

Kentucky

In Kentucky, a sweeping piece of legislation called the Safer Kentucky Act, which rewrites and expands much of the state’s criminal code, has widespread support among Republican lawmakers. It would limit bail payments by charitable bail organizations to a maximum of $5,000 and prevent those organizations from posting bail for people accused of certain violent crimes. The component targeting charitable bail organizations has been recycled from a previous bill first proposed in 2022.

Washington

In Washington, state Senator Mike Padden (R) reintroduced SB 5116, which would impose registration and reporting requirements on charitable bail funds. Padden, who is also a founding member of the state’s conservative Freedom Caucus, has served as a member of ALEC’s Criminal Justice Task Force. When he was a state representative in the 1990s, he served on ALEC’s board of directors.

In the early 2000s, Padden used his influence to secure $7.5 million in fees and interest payments via favorable county contracts and special interest legislation for his former employer, a debt collection agency. This session, the senator has also sponsored bills to repeal a state ban on contracting with private prison companies and authorize the use of chokeholds by police.

Virginia

Virginia’s HB 846, introduced by conservative delegate Wren Williams, would similarly regulate charitable bail funds by implementing steep registration fees and other requirements. The bill also prevents bail funds from assisting anyone previously convicted of a violent crime.

Legislative Successes

Beyond New York, Indiana is the only state to have put in place significant restrictions on charitable bail organizations with the passage of HB 1300 in 2022. The law requires charitable bail organizations to be certified by the state, prevents them from receiving state funding, and prohibits them from bailing out any defendant who has been charged with a violent crime or a felony, or has a prior conviction for a crime of violence. The Indy Starreported how a misinformation campaign that misrepresented the number of reoffenders bailed out by bail funds helped propel the proposed legislation into law.

In the wake of its passage, the Bail Project teamed up with the Indiana ACLU to sue the state over what it argued was unjust targeting of its organization. The Bail Project came under intense media scrutiny in Indiana after three of the individuals it bailed out committed violent crimes on pretrial release, making it the industry’s strawman for arguing in favor of maintaining the status quo.

Although neither the bill’s author, Rep. Peggy Mayfield (R), nor its coauthor, Rep. Donna Schaibley (R), are known to be ALEC members, reporting by CNN found that Mayfield had contact with the ABC while drafting the legislation. In addition, the three Senate sponsors of the bill are all affiliated with ALEC.

“Unlike licensed bail agents, bail funds do not have the ability to recover defendants who skip court, and their involvement should be limited to cases that don’t impose a significant risk to the public’s health and safety,” ABC Executive Director Jeffrey J. Clayton wrote in an op-ed when a previous version of the legislation was under consideration.

Cherson disagrees, telling CMD that “charitable bail organizations make a small but meaningful impact on the incredible devastation wrought by this system. And the more legislatures pursue these types of restrictions, the more broken these systems become.”