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CRIMINAL JUSTICE | SUMMER 2021
Published in Criminal Justice, Volume 36, Number 2, Summer 2021. © 2021 by the American Bar
Association. Reproduced with permission. All rights reserved.This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database
orretrieval system without the express written consent of the American Bar Association.
BY SAM ROSEN
The protest movement sparked by the killing of
George Floyd has, among many other things,
turned public attention and policy focus to the
struggle to end cash bail, the practice of condition-
ing pretrial release of criminal defendants on the
upfront payment of money. In the month following
Floyd’s death, bail funds across the country received
upwards of $70 million in donations, exponentially in-
creasing their budgets. The Brooklyn Community Bail
Fund received $1.8 million in a single day; the Chicago
Community Bond Fund took in $1.7 million over a
week, and the Nashville Community Bond Fund, with-
out any intentional fundraising, received an amount
double its annual budget in just a few days. See RJ
Vogt, Donation Wave Powers Bail Funds’ Future, Law
360 (June 21, 2020), https://bit.ly/3bPKBxT.
Many of these donations were offered in an at-
tempt to bail out protestors arrested during this sum-
mer’s uprising. But this new attention also opened
more eyes to the effects of the cash-bail system:
two-thirds of people in America’s jails—400,000
people on any given night—have not been convicted
of a crime. Jocelyn Simonson, a professor at Brooklyn
Law School, and likely the country’s most prominent
bail scholar, has explained that “[t]hose unable to
post bail must endure the violence of jails and risk
losing jobs, housing, and custody of their children;
no matter the facts of the case, the incentive for
them to plead guilty is strong.” Jocelyn Simonson,
The Bail Fund Moment, n+1 (June 22, 2020), https://
bit.ly/2TfPdHp. Like virtually all other aspects of the
criminal legal system, the effects of cash bail harm
Black people most of all. And COVID-19, which has
disproportionately affected those in jails and prisons,
SAM ROSEN graduated from Harvard Law School in
May of 2021. He interned for Civil Rights Corps in the sum-
mer of 2020, and his writing has appeared in The Atlantic, Bos-
ton Review, and other outlets. He can be reached at srosen@
jd21.law.harvard.edu.
Bail Fund
Co-Optation and
the Purpose of
Cash Bail
has compounded this damage, further surfacing the
cruelty of detention, both pre- and post-conviction,
for an expanding audience.
This heightened public visibility and massive influx
of donations have coincided, broadly, with heated
legislative showdowns in two of America’s largest
states. In January 2020, New York passed a law that
did not get rid of cash bail but greatly reduced the
number of alleged crimes for which judges could set
it. Immediately after the law went into effect, how-
ever, the changes faced fierce backlash, and only
months later Governor Andrew Cuomo began push-
ing for rollbacks. See Karen DeWitt, NY Bail Reform
Rollback Takes Effect, WAMC (July 2, 2020), https://
bit.ly/2RGFvgJ. In January 2021, the Illinois legislature
passed the Pretrial Fairness Act, which Governor
J.B. Pritzker signed into law in late February. The law,
which will take effect in 2023, makes Illinois the first
state to eliminate cash bail entirely. Maria Cramer, Il-
linois Becomes First State to Eliminate Cash Bail, N.Y.
Times (Feb. 23, 2021), https://nyti.ms/3hMtjpd.
As more people debate the efficacy of cash bail,
two prominent myths have emerged. The first is
that cash bail keeps communities safe. As the Pre-
trial Fairness Act headed to the desk of Governor
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