Georgia SB63 bail bill defies Citizens United and hurts Georgians

The state of Georgia was once the self-proclaimed leader in criminal justice reform. Today, it looks more like a leader in furthering a corporal-centric dystopia. The GOP-controlled legislature in the Peach State just teed up a law that restricts charitable bail funds. Said another way, it limits how often corporations can bail others out of jail. Seriously. Senate Bill 63 will severely restrict nonprofits, charities and churches that pay the bail of economically strapped people who are incarcerated. These corporations will only be allowed to bail at a maximum of three people per year, three. This largely would apply to all organizations, with the exception, of course, of bail bond companies.

And this bill is not only unnecessarily cruel, but it also should be a violation of the First Amendment right to expression, as far as I’m concerned. Just as the Supreme Court held in Citizens United that the government cannot limit how much corporations spend on political campaigns because such a limit would violate the First Amendment, why should corporations be limited to how much they can spend on the freedom of others? Money talks, literally and legally. Spending money basically amounts to expression. As explained, the Supreme Court has held that government restrictions on spending amounts, well, that means that you’re restricting speech. Under First Amendment precedent, such government restrictions would then need to be sufficiently justified, whether it be by compelling government interest, or maybe even just a legitimate one.

While I’d argue that it must be the latter here, I don’t think that there’s even a legitimate reason. Senate Bill 63 does not serve any kind of governmental purpose. It’s simply an inhumane way for the GOP-controlled Senate to punish poor Georgians, and also to crush protesters who exercise their First Amendment rights by raising their voices in the streets.

In fact, by basically barring organizations from helping release people from jail, jail overcrowding is going to rise. And it is already bad in Georgia. According to an October 2023 ACLU report on the Fulton County Jail in Atlanta, and that’s where Donald Trump and co. were all fingerprinted, booked and some of them held, well, nearly 400 people there were in lockup simply because they didn’t have the money to pay bail. The facility holds just 1,100 people. That means nearly half of those in the Fulton County Jail are there because they’re poor.

This is the story across the state, mind you. People awaiting trial on minor offenses are stuck behind bars because they can’t afford the bill. And these people aren’t guilty, as they have been convicted of nothing. Many will ultimately be released or never even see the inside of a prison cell. But in between the time between the trial and them maybe being able to pay the bail, they’ll aggravate the crowding and county lockups. They’ll also lose out on the ability to earn a living and pay rent by returning to work, or the ability to support their family simply by being physically present, or the ability to improve their chances of beating the charges by helping build their defense. These poor defendants are the ones who will needlessly suffer.

Many bail practices are already unconstitutional to begin with. The system capitalizes on the fact that there are more victims of it then there are pro bono attorneys out there who can fight it, and that injustice is compounded by the restrictions that are outlined in Senate Bill 63. If we must live with the notion that, under Citizens United, corporations should be able to spend as much as they want on politics as an exercise of free expression, I refuse to back away from the belief that corporations should have the same unlimited opportunity when it comes to spending on the freedom of people.