Rebecca Gill was out of options. At 39 years old, she was arrested and though not convicted of a crime and presumed innocent, confined to a jail cell. This happened because of a cash bail requirement that she couldn’t afford. Her friends didn’t have extra money to help, and she was unlikely to see a judge until she’d been in jail for two full weeks.

Stuck in jail, she was in jeopardy of losing her job and her driver’s license. Losing her license would result in myriad consequences, such as preventing her from getting to work and making it more difficult to take care of her son and mother.

Thankfully, the Nashville Community Bail Fund paid Rebecca’s bail, allowing her to keep her job, her license, and return to her family. The Bail Fund’s work has alleviated tremendous suffering on the part of those incarcerated and their loved ones, reduced the length of time in jail for their participants, improved outcomes, and saved taxpayer dollars. But a local Nashville policy threatens the rights of people like Rebecca, and sets a concerning precedent that could have implications for bail funds nationwide.

Today, the ACLU, Civil Rights Corps, and the Choosing Justice Initiative are standing up to that policy. Together, we are suing in federal court to challenge the constitutionality of the rule and ensure that the Nashville Community Bail Fund is able to continue its important work helping people like Rebecca.

Under the local rule, developed by the Davidson County Criminal Court judges and clerk, anyone trying to post bail on behalf of a friend, loved one, or community member must agree that the money posted is subject to garnishment for any future debts assessed in the case. In other words, anyone paying cash bail must agree that the defendant’s court costs, fines, fees, or restitution can be deducted from their cash bail deposit.

In this manner, the county and local government force people who are at their most vulnerable — stuck in jail, and legally innocent — into an unconstitutional agreement. Furthermore, by extracting this promise to pay court debts using the same money posted to facilitate pretrial freedom, government officials ensure access to revenue by taking a cut of the cash bail deposit.

Let’s say someone is arrested for a crime and ordered to pay a $3,500 bond that they are unable to afford. Their family and friends are then able to put that $3,500 together. Under local policies in Davidson County, that money would only be accepted if the family and friends posting the bond agreed that their money could be used to pay any fines, fees, or costs assessed against their friend in the future. If they don’t agree to this, their loved one remains in jail.

When the founders of our country enshrined the concept of bail into our constitution, it was intended to be a method of facilitating pretrial freedom and reasonably incentivizing incarcerated people to return to court to face charges levied against them. Using bail as ransom money or to generate revenue violates the core tenets of a system of pretrial justice.

In many instances, the money posted as bail doesn’t belong to the arrestee themselves, but is collected by friends, family, and other community members. Using the pressure of jail to force these parties to pay a loved one’s debts — lest they remain incarcerated — is not only illegal, it’s unfair.

Local governments across the country in places like Tennessee, Florida, Alabama, Michigan, and Wisconsin impermissibly use money bail to pay fines, fees, and other debts. These garnishment practices have not been challenged in court in decades.

Bail garnishment policies drive pretrial incarceration with a slurry of related negative consequences both for the individual and the system. These consequences include job loss, the inability to care for family members, exposure to violence in jail, a higher likelihood of pleading guilty, increased long-term recidivism, increased failures to appear in court, and waste of public funds on needless incarceration.

Historically, when a Nashville Community Bail Fund participant completed their case, their bail money was refunded and returned to a rotating pool of cash so the fund could assist the next person. Davidson County’s criminal court judges recently took that option away without any logical reason. Without intervention, the Bail Fund will eventually lose its entire rotating fund and be forced to close.

Since it began operating in 2016, the Bail Fund has freed more than 1,000 people who were incarcerated because they could not come up with $5,000 or less in exchange for their liberty. Several other such bail funds exist across the country. Davidson County’s policy poses a roadblock to these organizations’ crucial work.

The Nashville Community Bail Fund and the ACLU envision a world in which pretrial detention is so rare that there is no longer a need for charitable bail funds. Until that point, bail funds like Nashville’s provide a crucial lifeline. If the fund is forced to close now, thousands of Nashvillians will be left without assistance.

This senseless policy violates the U.S. Constitution. We’re suing to ensure that the work of the Nashville Community Bail Fund and other bail funds across the country are allowed to continue, uninhibited by government officials’ attempts to turn cash bail deposits into a revenue stream.

ACLU of Maine executive director Alison Beyea gave the follwong comments at a press conference on February 4, 2020:

Good afternoon. My name is Alison Beyea and I’m the executive director of the ACLU of Maine. We are here today to urge Maine’s legislators to pass LD 1693, and restore access to justice for victims of workplace harassment and discrimination.

Access to the courts has long been a crucial tool for holding companies accountable to the law and the rights of their employees.

30 years ago, if an employee or group of employees faced harassment or discrimination in the workplace, they could take their case to court. If a woman faced sexual harassment by her employer, or a group of Black workers was treated differently than their white counterparts, they could sue. The lawsuit would have the effect of bringing the abuse to light, deterring future discrimination, and achieving some justice for the workers.

Today, the rise of forced arbitration agreements has largely done away with that.

Today, if a worker or group of workers is the target of unlawful discrimination or harassment, they may not have the option to sue. Instead of bringing their complaint to court, they may have to bring it to an industry arbitration board made up of lawyers with no training on the legal issues surrounding harassment.

This use of forced arbitration – in which employees knowingly or unknowingly sign away their right to sue their employers as a condition of employment – slams the courthouse doors on victims of workplace harassment and discrimination. 

Arbitration lacks the procedural protections afforded by the justice system. Rather than going before a judge or a jury of one’s peers, cases in arbitration are decided by a panel of lawyers who are not required to follow legal precedent.

And unlike court cases, these proceedings are subject to strict confidentiality. Even if a victim wants to discuss their case publicly, they cannot. This secrecy thwarts public accountability for repeat harassers or the employers who have failed to stop them.

As a result, too many valid sexual harassment and other discrimination cases never see the light of day, repeat offenders are not held to account, and few survivors get true justice through this process.

Yet despite this denial of justice, the use of forced arbitration has doubled in scope since the 1990s. And it is prevalent in female dominated industries – 58 percent of female workers are subject to the practice – as well as in low-wage fields and industries dominated by women of color. 

To be sure, some people may prefer arbitration to the process of litigation, and they should have the right to pursue that course if it is their preference. But they should also have the right to pursue justice in the courts.

To safeguard everyone’s rights to be treated with dignity, Maine’s lawmakers should support efforts to protect all victims of discrimination. LD 1693 would preserve access to courts for Maine workers when all other avenues have been closed off by corporations.

Legislators should take this opportunity to pry the courthouse doors open again, and ensure victims of harassment and discrimination get their day in court.

When brainstorming ways to keep kids safe, I'd put things like establishing good schools, strong communities and stable homes at the top of the list. And then a million-and-a-half ideas later, so far down that we're no longer even on the list anymore, is where I'd put throwing kids in prison. And even that feels generous — which makes Maine's rampant use of incarceration as the default means of dealing with vulnerable children so troubling.

And I'm not alone in my concern. Earlier this week, advocates across Maine met together as part of the Maine Juvenile Justice System Assessment and Reinvestment Task Force, where they called for Maine's leaders to take immediate action to end to the harm that Maine's youth incarceration crisis is causing.

At the meeting, the Center for Children’s Law & Policy presented its findings and recommendations — gathered over the course of a year through interviews and focus groups with top state officials, legal & law enforcement personnel, affected youth and their families, as well as other experts from across the country.

Through its research, CCLP found that in over half of detention cases, the reason for detention was to provide care and that the vast majority of children imprisoned for over 30 days were being held at Long Creek while waiting for placement or programming elsewhere.

This becomes even more boggling when you realize that in Maine, kids swept into Long Creek because they're in need of care don't always receive that designation because of unlawful behavior on their part. Instead, this label ends up being extended to kids who are simply facing mental health challenges or unstable housing. As Rep. Charlotte Warren pointed out at the meeting, according to Title 15 of the Maine Code, "if kids are homeless, [the state] can incarcerate them."

Warren went on to call for a more community-centered approach. "We need to build community-based resources. That's what I want our goal to be...We need community-based supports...we need to rebuild that. We need to rebuild crisis & mobile crisis [beds]."

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ACLU of Maine Executive Director Alison Beyea, who was also at the meeting, had similar takeaways, saying that "helping young people who struggle should be a problem we address through our health and human services systems - not through our criminal justice system."

Thankfully, there is a bill up for consideration in the State Legislature —  LD 1684, "An Act To Clarify the Right to Counsel for Juveniles and Improve Due Process for Juveniles," sponsored by Rep. Victoria Morales of South Portland — that aims to address youth incarceration in several ways.

LD 1684 would set a minimum age for prosecution (12) and incarceration (14), keeping the youngest, and most likely to be harmed by incarceration, children out of the system. Then, if prosecutors and judges were to push forward with incarceration, they would have to prove that outside treatment/alternative placement were unviable options and would require periodic 90-day reviews before a judge to determine whether commitment of a child is still in the best interest of the child and the community. The bill would also do away with the mandatory minimum one year sentence at Long Creek, helping get kids out of prison faster, and would make sure that kids in jail continue to have access to legal representation throughout their sentence.

Moves like this to limit the use of detention are vitally important. Detention has been shown to have a wide range of negative impacts on kids, including disruption to connections to family, school and communities; exacerbation of mental illness and risk of self-harm; increased likelihood of delinquent behavior; and a slowing of the natural aging out process of delinquency.

But even if LD 1684 does pass, incarcerated kids in Maine might still face additional threats. Currently, the state is considering re-locating incarcerated women to Long Creek, where they would share facilities with the youth – this doesn't happen in other states. This move would limit youth access to programming and recreation they desperately need, compounding the negative effects of incarceration.

It's time that instead of meeting our most vulnerable kids with more trauma, we move away from youth incarceration and start investing in communities, giving our kids a chance to heal.