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.

Andrea Woods, Staff Attorney, ACLU Criminal Law Reform Project

More than forty years ago, Congress gave the executive branch a set of exceptional surveillance powers to pursue foreign spies on U.S. soil. Now, the government is increasingly relying on those powers to advance ordinary domestic criminal investigations.

In United States v. Osseily, a fraud prosecution in California, the government appears to have used this surveillance — which is conducted under the Foreign Intelligence Surveillance Act (FISA) — to wiretap a longtime permanent resident of the U.S., Abdallah Osseily.

Mr. Osseily is a small business owner and a father of three. The government has charged him with bank and immigration fraud — charges that have nothing to do with “foreign intelligence” or “national security.” Indeed, the government has presented no evidence that Mr. Osseily ever acted on behalf of a foreign government. On top of all this, the government is trying to block Mr. Osseily from learning almost anything that would help him challenge this controversial surveillance.

As we and the ACLU of Southern California made clear to the court, this is wrong.

FISA gives the government an extraordinarily powerful surveillance tool. Under FISA, the government can ask a secret court, the Foreign Intelligence Surveillance Court, for approval to wiretap individuals to obtain “foreign intelligence information.” As compared to ordinary criminal wiretaps, for which the government must establish probable cause that the wiretap will yield evidence of a particularcrime, FISA surveillance is based on relaxed standards, allowing the government to conduct surveillance with fewer restraints. In recent years, the government has relied on FISA to deploy an array of novel and intrusive surveillance techniques — implicating the privacy rights of countless Americans who have never been suspected of any crime.

Disturbingly, the government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans, circumventing their Fourth Amendment rights. For instance, the government recently relied on FISA surveillance to charge a man in Washington D.C. with crimes related to mortgage fraud. It used FISA to spy on Temple University physics professor, Xiaoxing Xi, before charging him with wire fraud — in a prosecution that was ultimately dismissed. And in Michigan, the government revealed that it used FISA surveillance in a prosecution for food-stamp fraud. That’s about as far from espionage or national security as you can get.

To make matters worse, people caught up in FISA prosecutions face immense hurdles in vindicating their due process rights and holding the government accountable.

Normally, when the government uses wiretap evidence in a criminal case, defendants have the right to review the government’s application in order to challenge any errors and omissions. This is a commonsense requirement and a bedrock due process protection: The defendant, with the assistance of counsel, is best positioned to identify potential misrepresentations by government agents. But when it comes to FISA surveillance, defendants never get that opportunity — even when the government relies on FISA surveillance in ordinary criminal prosecutions. In the 40 years since FISA was enacted, no defendant has ever been able to review the government’s FISA application.

The Department of Justice Inspector General’s recent report on FISA abuses shows exactly why that’s a problem. The report exposed a shocking number of misstatements and omissions in the government’s FISA applications to surveil former Trump campaign advisor Carter Page. If this abuse can happen in the case of an adviser to the now-president, one can only imagine the surveillance abuses that affect other individuals less connected than Page.

Indeed, in 2000, the government confessed that 75 surveillance applications it had submitted to the FISA court contained misstatements and omissions of material facts. In 2014, a press report revealed that five prominent Muslim Americans, including one who had served in the Bush administration, were apparently targeted for surveillance. 

The one-sided and secretive nature of the FISA process, combined with the lack of disclosure to criminal defendants, encourages these abuses. As our amicus brief in Mr. Osseily’s case explains, courts must give defendants access to FISA materials consistent with due process, as Congress anticipated when it enacted FISA.

While the courts must do more to uphold the rights of defendants subject to FISA surveillance, Congress also has a responsibility to reform the statute to make clear that, whenever the government relies on FISA in a criminal prosecution, defendants have a right to review the applications and orders that led to the surveillance.

The government’s surveillance system, which has long been used to wrongly target Muslims, racial minorities, and others, requires fundamental reforms. Both the courts and Congress must now do their part to ensure that Americans’ rights are protected.

Ashley Gorski, Staff Attorney, ACLU National Security Project,
& Patrick Toomey, Senior Staff Attorney, ACLU National Security Project