Bail Nullification

Jocelyn Simonson*

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.

*Assistant Professor, Brooklyn Law School. For helpful comments and conversations, thank you to Amna Akbar, Laura Appleman, Rick Bierschbach, Darryl Brown, Mike Cahill, Bennett Capers, Devon Carbado, Natalie Chin, Beth Colgan, Erin Collins, Ted DeBarbieri, Eun Hee Han, Rachel Harmon, Susan Herman, Cynthia Godsoe, Lauryn Gouldin, Mike Grinthal, Pam Karlan, Andrew Kim, Kate Levine, Sara Mayeux, Sandy Mayson, Pricilla Ocen, Sabeel Rahman, Christine Scott-Hayward, David Sklansky, Carol Steiker, and Sandra Guerra Thompson. This article also benefited from comments at presentations at the 2015 CrimFest Conference, LatCrit Twentieth Anniversary Conference, Junior Criminal Professors Roundtable, Critical Justice Roundtable, Brooklyn Law School Faculty Workshop, St. John’s Law School Faculty Workshop, ACS Junior Scholar Public Law Workshop, New York Area Junior Faculty Colloquium, Fordham Law School Criminal Law & Procedure Speaker Series, and the “Responding to the Money Bail Crisis” panel at the 2016 AALS Annual Meeting. I am grateful to Juan Caballero and Maria Ortiz for research assistance and to the Brooklyn Law School Dean’s Summer Research Stipend for financial support. The author was an attorney with the Bronx Defenders from 2007-2012, during the first iteration of the Bronx Freedom
Fund. All opinions and errors are, of course, my own.

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