The Minnesota Freedom Fund attracted national attention last year when it used millions in donations made after police killed George Floyd to bail people out from jail, some of whom were charged with violent crimes.

The moves were in line with the nonprofit’s mission: helping poor Minnesotans and people of color post bail in an effort to even the playing field with those who can more easily pay. But the Freedom Fund also drew scrutiny from Republican state lawmakers, who argued there should be more transparency when a third party pays cash to bail someone out.

Months later, a bill at the Legislature that would make the identity of someone paying cash bail a public record is now gaining some traction in the DFL-led House. The ACLU of Minnesota and the Freedom Fund oppose the measure, saying it could put domestic violence victims in danger, target the poor and distract from broader efforts among progressives to change the cash bail system.

Yet the bill, which is sponsored by Rep. Paul Novotny, R-Elk River, received a hearing Friday in the House Public Safety and Criminal Justice Reform Finance and Policy Committee. And state Rep. Carlos Mariani, DFL-St. Paul, who chairs the committee, said Novotny’s legislation could be included in a larger package of criminal justice bills House Democrats plan to approve.

How charitable bail organizations got put in the spotlight

When someone is arrested in Minnesota, a judge determines a bail amount that can be paid to release that person from jail. The money can later be refunded to a defendant, but the payment system is an effort to ensure people show up for court hearings and to limit public safety risks. (Many argue it’s ineffective.)

There are two ways to pay bail. One is by posting the full amount. The other way to pay bail is through bail bonds, a private, regulated for-profit system. Those bond companies will bail out a defendant but charge a non-refundable fee. (A judge can also set a less expensive bail if defendants agree to meet certain conditions upon release.)

In Minnesota, when a person is released through a bond company, that bonding business is publicly identified. But when someone posts cash bail for a defendant, they don’t have to identify themselves.

That difference drew attention last year when the Freedom Fund brought in more than $30 million in donations after Floyd’s killing and bailed out several people charged with violent crimes. Fox 9 News, which reported the story, found out the Freedom Fund was involved because defendants had signed affidavits promising to pay back the nonprofit for any bail money refunded to them. Those affidavits became court records.

The Freedom Fund is known in part for bailing out arrested protesters, but the nonprofit also strives to bail out others, regardless of the charges against them, particularly if they are people of color or low-income defendants. Those groups are less likely to be able to pay for bail, and are therefore more likely to stay in jail awaiting trial or resolution to their cases compared to people with more money.

Freedom Fund leaders also see their charitable bail practices as a way to help balance a system that disproportionately imprisons people of color and Native Americans.

The Freedom Fund irked GOP lawmakers when it bailed out some people charged with violent crimes, however. The nonprofit even appeared to rankle the Hennepin County Attorney’s Office when the fund bailed out a Minneapolis man facing weapons charges — and then bailed him out again after he was charged with second-degree riot following a “New Year’s Eve melee in downtown Minneapolis,” according to a county news release.

Bill aimed at Freedom Fund

Republicans who control the state Senate have advanced a bill that would regulate charitable bail organizations like the Freedom Fund and block them from posting bail for people charged with violent crimes or offering bail to people who have previously been convicted of a violent crime.

It also makes public the name of the charitable bail group when they pay to release someone.

The measure is unlikely to go anywhere in the House, where Democrats hold a majority, and most DFL legislators support groups like the Freedom Fund and hope to eliminate the cash bail system for nonviolent crimes. But another, more narrow bill, did get a hearing in the House last week.

Sponsored by Novotny, the Elk River Republican, the measure would make public the name of a person or organization that posts cash bail for someone held in custody in connection to violent crimes, including assault, burglary and arson. It would not put other limitations on groups like the Freedom Fund.

Novotny said the bill would make it easier for the public to know who is bailing out people charged with violent crimes. If that information is available at all through affidavits currently, it may only be accessible in person. “Right now, unless you physically go down to Hennepin or Wright County or wherever it is and know the right place to go and go to the right person at the courts to get the actual physical file, you can’t know, you can’t figure it out,” Novotny said. “If it’s somebody that bailed out in Warroad and you wanted to know why are they out, who put up the money for this, you’d have to physically go up to Warroad to do it.”

He also said he hopes the bill would result in more data on bail bonds to better determine if there are disparities in the court system. An October 2019 report from the Minneapolis Foundation cites research that has found huge racial disparities in pretrial incarceration, including that Black defendants typically face “substantially higher bail amounts compared to white defendants with comparable charges.” But it says Minnesota data is limited.

In December, the Hennepin and Washington county prosecutors said they will no longer ask for bail for people charged with certain nonviolent felony charges, saying it would reduce the number of Black Minnesotans who are, disproportionately, in county jails.

ACLU and Freedom Fund oppose bill

At the House hearing Friday, Jared Mollenkof, a board member at the Freedom Fund, said the organization opposed the bill because it wouldn’t amount to broad reform of the bail system. He also said making third-party bail information public could make life harder for domestic violence victims. Often, alleged victims post bail for someone accused of domestic violence but don’t want that information known by the person who hurt them. Novotny, a retired officer for the Sherburne County Sheriff’s Office, said a victim might bail out the person who hurt them because they have a job and pay rent or other bills. 

Mary Moriarty, the former top public defender in Hennepin County, said jurors or defense attorneys could still use that information against an alleged victim. “Let’s say they came into court and said that they were fearful they could be cross-examined about well, ‘You were so fearful why did you post bail?’” Moriarty said. (Novotny said he thought a reasonable person wouldn’t hold it against an alleged domestic violence victim.)

Julia Decker, policy director for the ACLU of Minnesota, said people associating the ability to pay bail with risk or danger to the public continues “an inequitable legal system that criminalizes people simply for being poor.”

The political left has shown interest in who pays bail at times, too. The Star Tribune reported in October that Derek Chauvin, who is charged with murdering Floyd, posted bail on a $1 million bond backed by a bail insurer in New Jersey. But how he afforded that bail is unclear, since the information is private.

Moriarty said that Novotny’s bill would not have made public the person who ultimately paid for Chauvin’s bail bond. The bail company involved is already public.

At its heart, Moriarty said Novotny’s measure “discriminates against poor people,” in that it needlessly highlights alleged crimes by low-income people over richer people who are bailed out for the same crimes with far less public attention or scrutiny. It wouldn’t collect relevant data to determine disparities, she said. 

One leading voice criticizing charitable bail organizations like Freedom Fund is the bail insurance industry, which underwrites and profits off the private bond system.

But Jeffrey Clayton, executive director of the American Bail Coalition, which represents the insurance companies, said they would rather see regulations similar to the ones that guide his industry placed on charitable bail organizations instead of disclosure requirements. 

Key DFLer doesn’t shut the door on bill

Despite opposition from the ACLU and Freedom Fund and at least some Democrats, Mariani, the St. Paul DFLer who chairs the House public safety committee, said he’s considering including the measure in a larger “omnibus” package of criminal justice legislation approved by Democrats.

Mariani said he believed lawmakers should focus attention on bigger changes to a “flawed” bail system and disparities in incarceration and agreed with concerns about how the GOP bill might affect domestic violence victims. But he said he held the hearing on the bill to create a dialogue on bail reform and try to spark bipartisan interest in the topic.

Mariani also said Novotny’s bill was the “least troublesome” measure related to charitable bail and characterized it as just making existing data more available for the public. He said he doesn’t want to negotiate with Senate Republicans on the charitable bail regulations, but didn’t close the door on Novotny’s measure. “If it buys some element of good faith (with the GOP), we may have it in our omnibus bill,” Mariani said.

Novotny said his bill is ultimately about transparency. “The next victims should be able to find out who put up the bail for this guy,” he said.