Jocelyn Simonson is a law professor at Brooklyn Law School.
“Money kept them in. Black love got them out.” That is the slogan of Mama’s Bail Out Day, an effort of grass-roots organizations from across the country to bail out mothers and other caretakers who are sitting in jail simply because they cannot afford to pay bail. From Oakland, Calif., to Montgomery, Ala., to New York City, nearly two dozen organizations affiliated with public defenders, local Black Lives Matter chapters and other activists for racial justice are raising money to post bail for strangers so they can spend Mother’s Day at home with their families.
Mama’s Bail Out Day brings together two critical frontiers in the fight of racial justice movements to end mass incarceration. The first is the rise of community bail funds, whereby grass-roots groups have increasingly begun to use revolving pools of money to post bail on behalf of strangers. Second, Mama’s Bail Out Day is part of a critical effort to include the experiences of women in the narrative surrounding the fight against mass incarceration. In particular, the effort concentrates this power on the plight of women of color, especially African American women and trans women, who are far more likely to be arrested, held on bail and sexually abused in jail than their white and cisgender counterparts. Taken together, this unprecedented coordination of efforts to bail out poor people of color exemplifies the kind of mass acts of resistance that can disrupt the status quo in the criminal-justice system.
My work studying community bail funds has shown that the communal act of posting bail is incredibly powerful. At any given moment, approximately 450,000 poor people across the United States are detained in jails because they cannot afford their bail, sometimes as little as $500 or $100. With community bail funds, literal action — the posting of bail — itself becomes a form of on-the-ground resistance by the very people most affected by mass incarceration. Each time a community bail fund pays bail for a stranger, the people in control of the fund reject a judge’s determination that a certain amount of the defendant’s personal money was necessary for the defendant’s release. They purchase a stranger’s freedom. It resembles the practice of jury nullification, in which jurors can find an accused not guilty for reasons other than legal guilt, including racial or system injustice. And, as the Mama’s Bail Out Day organizers have noted, it also echoes the historic practice of African Americans using money to free themselves and others from slavery.
By using the bail system against itself, collective efforts to post bail can change how we think about the institution of bail itself. The modern conception of setting bail is that a judge or a magistrate must weigh the interests of an individual defendant against those of a larger community. When a judge sets bail, he or she does so on behalf of the “community” and for the protection of the “community.” Speaking as part of the “community,” bail funds tell judges: Do not set bail in our name.
The national, coordinated effort of the grass-roots groups participating in Mama’s Bail Out Day are bringing these funds to an unprecedented scale. By the end of the day Friday, organizers expect to have bailed out more than 100 women and caretakers in nearly two dozen locations throughout the country. These activists are making a powerful statement about the ability of marginalized communities to support each other, build power and resist the status quo of money bail.
By engaging in this mass action in celebration of Mother’s Day, these groups are destabilizing more than the concept of community: They will be recasting our image of who the “mothers” we celebrate on Mother’s Day are and should be. Mama’s Bail Out Day celebrates mothers who are marginalized in any number of ways — shackled during pregnancy, targeted as immigrants, unfairly labeled unfit by child-welfare agencies — but who are of course full of love and deserving of support. Through the act of posting bail, these activists will also be shifting the narrative around the celebration of black motherhood.
The United States is in the midst of a new wave of bail reform — the past few years have seen a growing national push to reduce America’s reliance on money bail and pretrial detention. But efforts such as Mama’s Bail Out Day bring something unique to the table by contesting the public meaning of not only money bail, but also the criminal-justice system itself.