The longstanding scholarly debate over the ability of community members to engage in nullification has been confined to the study of jury nullification — when jurors acquit someone despite knowledge of their legal guilt.
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.Jocelyn Simonson (Brooklyn Law School) has posted Bail Nullification (Michigan Law Review, Vol. 115, 2017, Forthcoming) on SSRN via the Legal Theory Blog.