Bail funds help the poor get out of jail. Advocates say a Pa. House bill could shut them down

The General Assembly is also being lobbied by the bail industry’s former top advocate, who is registered to work for four bail bond companies

By: - November 16, 2021 4:24 pm

Black Lives Matter protesters match down Harrisburg’s Front Street in response to the death of George Floyd, May 30, 2020 (Capital-Star photo).

As the former head of the top national bail bonds industry group lobbies lawmakers, a bill that would treat nonprofits that free people from pre-trial detention the same as for-profit companies has quickly and quietly advanced in Harrisburg this month.

The measure, sponsored by Rep. Kate Klunk, R-York, was introduced on Nov. 3 without a memo describing what it would do in plain-English terms. 

The House Judiciary Committee sent the proposal to the full House last Tuesday, and it passed the full chamber 111-88 this Tuesday — a fast turnaround of just two weeks from the bill’s introduction to its approval.

The bill’s backers say that the nonprofits, known as bail funds, exist in a loophole in state law and should be registered and regulated in some way. But those who run the nonprofits say the bill is just an attempt to shut down a concentrated community effort to challenge mass incarceration.

In a statement to the Capital-Star on behalf of Pennsylvania’s eight nonprofit bail funds, Malik Neal, executive director of the Philadelphia Bail Fund, said the bill would not only impede their work, but also would prevent individuals, community groups, and churches from pitching in to aid incarcerated individuals on an ad hoc basis.

“We are among our communities’ chief advocates organizing for change to our criminal legal system,” Neal said. “Every legislator and official who believes our current system is unjust should stand with us in rejecting this bill.”

The bill would require any individual or group that pays bail for more than three individuals in thirty days to acquire a license from the state Insurance Department. They must pay $125 in fees to apply, and get a credit check and a criminal background check. 

State regulations also require that bondsmen maintain a “suitable place of business in a fixed location.” If anyone skips out on bail and the fund does nothing, the local district attorney could then move to revoke their license.

These new requirements are similar to what the bail industry’s chief lobbyist, suggested state legislators  do to limit bail funds in a December 2020 memo seen by the Capital-Star. The industry group’s former executive director, Nick Wachinski, is a registered lobbyist in Pennsylvania.

“It’s effectively a giveaway to the bail bond industry, and preventing anyone from just trying to help get people out of jail,” state Rep. Emily Kinkead, D-Allegheny, told the Capital-Star of the legislation.

It all revolves around bail, or a practice in which those arrested and accused of a crime are asked to pay a price, set by a judge, to leave pretrial detention in jail.

Those who can pay can go free, those who can’t must stay behind bars, sometimes waiting months for their day in court.

Cash bail, explained: How it works and why criminal justice reformers want to get rid of it

For those who can’t afford bail but want to leave prison, there is a third option — approaching a third-party lender for a bail bond.

Individuals can pay the bail bond company a non-refundable premium — usually no more than 10 percent of their total bail. The company then guarantees the remaining balance to the court, allowing the individual to go free. 

If the accused returns for their appearance, the bondsman keeps that premium as profit. If the accused skips out on their court proceeding, then the company will attempt to make the individual pay for the rest of the bail.

But community funds which pool donations from concerned citizens have served as an alternative to these for-profit companies, and the funds have seen a resurgence in recent years. 

Interest in the funds tends to increase during times of political strife, such as the recent protests against police violence and for racial justice as part of the Black Lives Matter movement.

There are at least eight such funds in Pennsylvania, including four in Philadelphia, as well as one in Pittsburgh, Lancaster, Dauphin County, and Montgomery County. Many were involved in efforts to free people arrested during Black Lives Matter protests after the murder of George Floyd and to get people out of unsafe jail conditions during the COVID-19 pandemic.

The funds also can provide services to individuals to help them show up to court, such as reminders, transportation, and connections to other social services. Once the accused has shown up before the judge again, the fund gets its money back.

“We are a huge benefit to their communities and to the safety of all,” Neal said. “Unlike bail bondsmen, we don’t exist to profit on the caging of our friends, loved ones and neighbors.”

The full scale of these funds is hard to measure. In an annual report  last year, the Philadelphia Bail Fund said it had gotten 401 people out of pretrial detainment by posting $2 million in bail. Other funds have not shared similar information publicly.

But the Philadelphia Bail Funds’s efforts are just one-tenth of 1 percent of the $14 billion in bail bonds posted by private companies, according to a 2017 estimate. Those companies then earned $2 billion in profit from those loans.

Klunk told the Capital-Star her bill was needed to close loopholes in the state’s bail laws. The bill, she added, would increase accountability in case someone whose bail was paid for by a nonprofit skipped their trial.

“They’re essentially holding themselves out to be a bail bondsman. They just happen to be a nonprofit agency,” Klunk told the Capital-Star. “So they should be required to have the insurance and go through those checks to make sure that everything is above board.”

The bill would not prevent funds from providing social services to individuals recently out of jail, Klunk added.

She added that she’s talked with multiple people in the justice system, including judges, district attorneys and the bail bond industry.

Klunk did not specify with whom she consulted, and state lobbying laws do not require lobbyists to state what topics or legislation they are lobbying on. But Capitol sources pointed to Wachinski as a likely advocate for the proposal.

Wachinski has served as the executive director of the American Bail Coalition, an industry group that advocates to “protect the constitutional right to bail by working with local and state policymakers to bring best practices to the system of release from custody pending trial.”

He also has been CEO of Lexington National Insurance Corporation, a bail bonds company, according to testimony he gave to the state Senate in 2016. 

Now, he works for the Harrisburg lobbying firm Bigley and Blikle. His company bio does not include his time at American Bail Coalition, but it does note that he “worked with other stakeholders in a broad-based coalition to unanimously pass Act 16 of 2015,” an earlier overhaul of state’s bail laws signed by Gov. Tom Wolf, a Democrat.

According to the Appeal, the law eliminated a cap on the maximum fee bail agents can charge, among other changes favorable to the industry.

Among Wachinski’s current clients, according to Department of State records, are at least four bail bond companies, including his former employer Lexington, American Surety Company and Bankers Insurance. 

He’s also a regular Republican campaign donor, according to state campaign finance records. 

Since 2019, he’s given $16,750 to House Republicans — half of which went to the caucus campaign committee — and $20,250 to Senate Republicans, most of which has gone to Lancaster County’s two GOP state senators.

Though Wachinski’s name is not listed on the coalition’s website, those contributions still list his employer as the ABC. 

Wachinski did not reply to a request for comment. But in an unaddressed December 2020 memo from the American Bail Coalition, the group called for action against bail funds.

Before 2020, the memo says, the funds were “often small, community-based organizations” that only helped “non-violent misdemeanor cases.” 

But after a year of racial justice protests, these groups “warchests” had swelled, the memo claimed, and were “now a major issue in bail and pretrial release.”

“The legislature should require, at a minimum, licensure of bail funds and those who post bonds in the courts, that the defendant be indigent and in need of charitable bail, and restrict the nature of charges and size of the bonds for which a bail fund may post bonds for defendants,” the memo said.

A rewrite of Texas’ bail law signed this fall also attempted to regulate these nonprofits The law requires the funds to register with their county and report who they provide financial support to.

Since Pennsylvania’s bill was introduced Nov. 3, it has flown through the usually slow legislative process, even though its backers have been unable to point to any specific need for the licensing requirements, or negative impacts of a bail fund.

During the Nov. 9 committee vote, Kinkead asked Klunk and House Judiciary Chairman Rob Kauffman, R-Franklin, why the bill was necessary.

“What problem has come up? What history of safety violations can be tied to these nonprofit, pro-bono bails funds?” Kinkead said.

Neither Kauffman or Klunk could offer a concrete example. But because a bail fund’s decision maker “doesn’t have that professional experience in this, it could potentially create problems,” she argued.

The answer was not good enough for Kinkead.

“This is a five day old bill to solve a problem that they admit does not exist,” Kinkead told the Capital-Star later that day.

Kauffman did not reply to a request for comment. Neither did a spokesperson for the House Republican Caucus. 

The bill was slightly amended on the House floor this week. On Monday, the chamber unanimously approved an amendment to extend the implementation deadline by 120 days. 

However, a Democratic amendment to raise the licensing threshold from three individuals helped to 75 failed.

The bill now heads to the Senate. In an email, a spokesperson for Wolf said his office was still reviewing the bill.

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.