Lawmakers hope to target inequities in Minnesota cash bail system

This story was originally published by MinnPost.

Minnesota lawmakers are starting to move toward eliminating cash bail for certain offenses.

When someone is arrested and charged with a crime like theft or drug possession, often they have to pay an amount decided by a judge to be released before their trial begins. The person gets their money back when they show up to court, but those who can’t afford to pay remain in jail.

The bill, authored by DFL Rep. Cedrick Frazier of New Hope, would limit the use of cash bail by the courts for misdemeanor offenses, allowing an offender to be released pre-trial without having to pay.

The legislation is meant to target inequities within the state’s criminal justice system, which disproportionately jails lower income people and people of color due to their inability to pay.

Opposition have pointed to the cash bail system as a way to keep the people safe by keeping offenders in jail, but proponents say the harm caused by the system far outweighs the public safety benefits.

Fixing the cash bail system

Frazier, a former Hennepin County public defender, has taken up the bill after Rep. Mohamud Noor of Minneapolis carried it in the past, calling it an important issue that needs reform after decades of conversations about the system’s issues.

“If cash bail is one of the ways that is offered for release, we know that disproportionately it’s poor folks, and then even more disproportionately it’s Black and Brown people who tend to be folks that are on the poorer side when they enter the criminal justice system, and they don’t have the resources to avail themselves when the cash bail option when it is presented,” Frazier said.

“If I’m a poor person and I’m charged with the same crime as someone else that has access to more resources than I do, that shouldn’t determine whether or not I get to go home that day or whether I miss my job, which could cause a domino effect on the rest of my life,” he said. “It shouldn’t be based on your bank account.”

The bill does include some exceptions like domestic violence, violating a protective order and driving while impaired.

According to a 2021 report by the Minnesota Freedom Fund, a nonprofit that pays cash bail and immigration bonds for those who can’t afford it, Black people make up 54% of individuals bailed out by the fund but only 6% of the state’s population. The average bail request from Black defendants was more than $78,000 — twice the average request from white defendants.

“We really have a situation here where we have a cost that’s put on freedom and we fundamentally have concerns with that,” said Freedom Fund Policy Director Cacje Henderson. “We think that this misdemeanor bail reform bill is a great start in addressing that issue.”

Other states have recently altered their cash bail systems. A new law eliminating cash bail altogether in Illinois was meant to go into effect in January before an Illinois Circuit Court judge ruled it unconstitutional, prompting the state’s Supreme Court to issue a stay on the law. New York passed several laws in 2019 limiting cash bail, but amended the law with some bail-eligible exceptions a year later and again in 2022 to give judges more discretion in deciding bail.

Fixing the cash bail system was listed as a priority by DFL lawmakers early in the legislative session, but the bill hasn’t yet been heard in the House Public Safety Committee since being introduced in January.

Frazier said that is not due to a lack of appetite for the bill, but instead a very full agenda by the DFL. Issues deemed more urgent by the majority like abortion, restoring the vote to felons and driver’s licenses for undocumented people have taken precedence so far.

“We’re waiting to ensure that we can set it up so that we can have this conversation in a way that is thoughtful and thorough,” he said

He said he’s working through amendments to add to the bill, and will have a better idea next week when the proposal will be heard.

Cash bail vs. public safety

Republican lawmakers have introduced two bills, one that would require it be recorded if a third-party pays someone’s bail and another that would prevent nonprofit organizations from paying people’s bail, known as the Bail Abatement Nonprofit Exclusion (BANE) Act.

DFL control of both chambers and the governor’s office makes it unlikely either bill will receive a hearing.

The latter appears to target the Freedom Fund, which was flooded with tens of millions of dollars in donations as people around the world watched the clashes between police and protesters following George Floyd’s murder by a then-Minneapolis police officer. The organization came under scrutiny after a few of the thousands of people bailed out went on to commit serious crimes after being released.

Republicans have argued the cash bail system helps keep the public safe by keeping offenders in jail, preventing them from committing new crimes after being released.

BANE Act author GOP Rep. Harry Niska of Ramsey declined to comment through his legislative aide.

Henderson said she hopes the Freedom Fund put themselves out of business as well — not through the restrictions proposed by Republican lawmakers but by fixing the root causes of the system as it exists.

“Instead of just minimally addressing the problem by requiring people to pay high bails be free, we would rather see a proposal put forward to address the systemic reasons for why people are in our justice system in the first place,” she said.

Going forward, Henderson said she would like to see lawmakers ultimately address the entire cash bail system, which lacks support for people going through the criminal justice system who don’t have the ability to pay. That could include legislation that would build on the misdemeanor bill by including felonies as well, with some exceptions for violent offenders charged with crimes like domestic violence and sexual assault to keep those victims safe.

The Freedom Fund is also working on a data transparency bill that would mandate counties to report pre-trial data to the Legislature on an annual basis. Some Republicans have expressed interest in this information, which would help dispel the mischaracterization between the relationship of cash bail and public safety, she said.

“Our opposition is often saying having a cash bail system is what keeps people safe, without addressing those root causes,” she said. “We believe that having consistent and transparent information about the condition of people sitting in jail pretrial is one of the steps that we can take in addressing the harms of our cash bail system.”

This article first appeared on MinnPost and is republished here under a Creative Commons license.