News / FJP Releases

November 15, 2024 (ATLANTA, GA) —

Today, 39 prosecutors and justice leaders filed an amicus brief in Barred Business v. Kemp, opposing Georgia’s Senate Bill 63 (S.B. 63), a law that imposes arbitrary restrictions on bail payments and criminalizes charitable bail efforts. This case, now before the U.S. Court of Appeals for the Eleventh Circuit, challenges the constitutionality of the law, which threatens pretrial justice and public safety.

“S.B. 63 is a direct assault on the critical work of charitable organizations that post bail for those who cannot afford it,” said Amy Fettig, acting Co-Executive Director of Fair and Just Prosecution. “This unconstitutional law exacerbates wealth-based detention and will lead to unnecessary pretrial incarceration of people who pose no public safety risk, with devastating consequences for individuals and communities.”

Charitable bail funds are not a new phenomenon. For generations, families and communities have come together to pool resources to secure the release of loved ones. Today’s charitable bail organizations continue that tradition, offering vital assistance to those impacted by an unjust bail system incarcerating people for being poor. In addition to paying bail, many of those organizations provide supportive services, such as transportation, court reminders, and connections to community-based programs.

Pretrial detention on the basis of a person’s inability to post bail harms individuals and public safety. Even brief detention can lead to loss of employment, housing, assistance, education, and child custody, while restricting access to essential health care. Studies show that even 24 to 48 hours of detention increases future criminal behavior and recidivism, especially for low-risk defendants. Longer detention raises the likelihood of new offenses and re-incarceration. Pretrial detention is also costly, wasting resources that could be used to prevent serious crimes and support community stability.

The brief underscores the broad harms of S.B. 63, including increasing unnecessary pretrial detention that has no public safety benefit but instead increases recidivism and harms the detained individuals, their families, and their communities. It will exacerbate the devastating outcomes of a cash bail system that already disproportionately harms low-income individuals, and will further destabilize communities and reduce trust in the legal system while offering no public safety benefit. Amici urged the Eleventh Circuit Court to uphold the District Court’s injunction blocking the law from taking effect.

BACKGROUND

Enacted in 2024, S.B. 63 imposes arbitrary restrictions on individuals and organizations seeking to post bail for those who are legally eligible for release but remain incarcerated solely due to an inability to pay what are often very small amounts of bail. By criminalizing charitable bail payments that do not meet the proposed law’s unworkable guidelines, S.B. 63 effectively blocks the lifesaving work of charitable bail funds, faith-based groups, and community organizations that help free people who would otherwise languish in pretrial detention simply because they are poor. S.B. 63 restricts posting bail regardless of the incarcerated individual’s risk to public safety or likelihood to appear in court, or even the crime the individual is charged with. It is a punitive measure rooted solely in financial ability, affecting mostly people charged with misdemeanors who lack the means to pay bail amounts of a few dollars.

The District Court for the Northern District of Georgia previously issued a preliminary injunction preventing the enforcement of S.B. 63, citing its unconstitutional vagueness and violation of First Amendment protections. However, the state of Georgia has appealed the decision.

STATEMENTS

20th Judicial District (Boulder), Colorado District Attorney Michael Dougherty, said, “Poor people should not be in jail simply because they are poor. After a Court has carefully considered public safety and other factors, the Court sets a bail amount that is appropriate. A person has the right to be released if that bail is posted. S.B. 63 has a direct, discriminatory impact on poor people who would otherwise receive help from legitimate sources of support. S.B. 63 denies freedom to individuals who are to be released. Every additional day in a jail deprives people of the opportunity to work, support their families, and care for their kids. It also places an additional burden on taxpayers who are funding their unnecessary stay in custody.”

Ramsey County (MN) Attorney John Choi said, “Charitable bail organizations are simply the community’s response to the inequities of our cash bail system, offering bail support to low-income people and vital resources for families in need. The high court appearance rates of those whose bail is funded by these charitable organizations is one of the many factors that clearly demonstrate the lack of any public safety justification for restrictive measures like S.B. 63. If enacted, laws like S.B. 63 would further entrench a two-tiered legal system in which justice is too often meted out on the basis of wealth as opposed to real concern for public safety. The path toward a better quality of safety and justice for all is to move from a wealth-based system to one that is based on actual risk.”