In a disturbing press release, the Sheriff attacks Black citizens and the Free the 350 Bail Fund for exercising their legal rights. | By Scott Gordon and Dayna Long
Illustration by Maggie Denman.
Alice Herman, Oona Mackesey-Green, and Micaela Magel contributed research for this story.
The Dane County Sheriff’s Office used a press release on Monday to publicly call out the Free the 350 Bail Fund for bailing three people out of jail. The release more or less convicted the three defendants in question, declaring them “responsible for crimes involving gun violence in Dane County,” but the focus of the release wasn’t criminal wrongdoing. Instead, Sheriff Dave Mahoney and PIO Elise Schaffer apparently sought to stir up outrage about the fact that the non-profit bail fund had put up the amount of bail set by judges to secure the release of three people who have been charged with crimes but not convicted. The release attacks Free the 350 and these three defendants for following a legal process and exercising their basic rights.
As Madison365 pointed out in a story this week, targeting a nonprofit in a press release is a pretty unusual way for police agencies to use their bully pulpit. Cops routinely send out press releases about arrests and charges, and sometimes those will note an incarcerated person’s bail amount and/or whether they’ve been released on bail. Arrests, charges, jailings, and bail are usually matters of public information and sometimes that information is easy to access online, depending on the locale. But it’s rare for police to make a central issue of the mere fact that someone has been bailed out—and nearly unheard of for them to call out the people paying for it.
The sheriff’s press release doesn’t offer compelling evidence that these three people out on bail pose an imminent danger to the community. It just notes that they’ve been charged with various crimes, some of them violent, and treats it as a foregone conclusion that police and prosecutors are going after the right people—something we know very well we can’t take for granted.
Additionally, the Sheriff’s Office appears to have exaggerated the charges against one of the people who were bailed out. The press release notes that charges against the people out on bail include “First Degree Intentional Homicide.” Dane County Circuit Court records indicate that one of the people mentioned in the release was charged with first degree intentional homicide over a 2018 shooting in a downtown parking ramp, with court records and news reports indicating that that charge was later knocked down to “First Degree Reckless Homicide,” and that the accused has argued in court that the shooting was a case of self-defense. The difference between “reckless” and “intentional” is a big one, and certainly the Sheriff’s Office is capable of looking at court records and getting the facts straight. This factual issue makes the press release not just irresponsible and sensational, but possibly defamatory.
It’s hard to miss the sheriff’s indignation that bail funds are trying to level the playing field in our cash bail system, making it easier for poor people and people of color to get out of jail. In fact, bail funds provide a little bit of relief to historically over-policed communities, cutting down on the trauma and instability that results when people are ripped away (rightly or not) from their neighborhoods and families. At a time when even police officials often agree that it’s best to keep jail populations down to reduce the spread of COVID-19—which has been a problem for the Dane County Jail—these funds also serve an important public-health function and very likely save lives.
Activists’ gains and the backlash
Keep in mind, Free the 350 is a prison-abolition group, but its day-to-day work essentially follows the rules and logic of the carceral system: someone gets arrested, bail is set, they can get out if someone comes through with the money. The bail fund hasn’t broken any rules or done anything untoward or underhanded: Free the 350 is very open and clear about what it’s doing, and seems to have more support from the community than ever.
Publicizing the fact that a Black-led organization empowered Black people to more fully exercise their legal rights serves a specific purpose, and we can look to history to better understand it.
In Pike County, Mississippi in 1961, it was newsworthy when 16 Black people attempted to register to vote over a three-day period because intimidation and byzantine voter registration laws were meant to prevent Black people from even thinking about attempting to register. In Taylor Branch’s Pulitzer Prize-winning book Parting The Waters, he writes that the story published in the McComb Enterprise-Journal was a warning to local segregationists. It was a tip to a hostile white population that the voter registration classes organized by young Black activists were proving to be effective at bolstering the confidence of an oppressed and disenfranchised Black community.
Though other Black people were encouraged by the news, the fact that these early attempts at registration were so widely publicized no doubt also gave Black people pause, given the violent retribution that was often visited on anyone perceived to have crossed a racial boundary. Within a year, the Mississippi State Legislature made this practice of publicizing attempts to register to vote an official policy of voter registration, “passing a law that required the names of new voter applicants be published in the newspapers for two weeks prior to acceptance.” In a state where Black people were violently attacked and sometimes lynched by vigilantes for even minor involvement in voter registration efforts, this was plainly an intimidation tactic.
In a city where two Black women have been victims of racist attacks—one explicitly an attempted murder—in the past few weeks, we should view the Sheriff’s choice to target a Black-led organization and three Black people in a press release as extremely concerning.
It is also notable that in Madison, Sheriff Mahoney’s press release was picked up by local racists, most prominently, David Blaska, who immediately included the information in his blog. It is a mistake to give Sheriff Mahoney the benefit of the doubt by viewing his actions in a vacuum instead of understanding them as a part of a larger historical context.
History also shows us that intimidation and smear campaigns follow on the heels of success—even modest ones—in the struggle for civil rights and racial justice.. Mississippi changed its laws to further intimidate potential Black voters after activists began making headway in their voter registration campaigns. Sheriff Mahoney’s press release follows Free the 350’s momentous July 3 announcement that for the first time in the group’s history, they were able to free every Black woman in the Dane County jail who was there due to unpaid bail.
The rise of bail funds, combined with the pandemic and a nationwide uprising against policing and prisons, coincides with many national and state-level policy debates about reforming criminal justice and cash bail in particular. In New York State, a reform package abolishing cash bail for most offenses went into effect on January 1, over the objections of many county sheriffs. The backlash was swift and powerful, and in April the state rolled back many of the reforms. In Chicago, a local media debate has played out about bail funds’ impact on public safety: The Chicago Reporter‘s Curtis Black argues that a recent Chicago Tribune analysis manipulates the data and overstates the danger of bailing people out.
A flawed narrative about Free the 350
In the Madison365 story, Sheriff Mahoney complains that Free the 350 bailed out these three people in particular and puts forth a narrative that the bail fund is supposed to emphasize bailing out people accused of non-violent crimes with small bail amounts, not people charged with violent crimes and held on higher bail. Schaffer brought up the same points in an email in response to questions from Tone Madison.
But there’s a logical, and legal, problem with the Sheriff’s angle: People accused of crimes, even violent ones, have rights. They still have families, friends, and neighbors who suffer the consequences of arrest and incarceration whether or not they’ve done anything wrong. If, god willing, they survive their run-ins with the criminal justice system, they still have lives that have to go on afterward. These individuals will have to reckon with the ways in which incarceration has damaged their physical and mental health, but so will society as a whole. Whatever they’ve been charged with and whatever they’ve actually done, the default preference for letting them rot in jail is morally unacceptable.
It’s also not clear that Free the 350 itself has ever drawn a clear line between violent and non-violent charges, or between low and high bail amounts. The whole premise of the bail fund and other abolitionist organizations is that incarceration isn’t the right solution to any of society’s problems, including interpersonal violence. In a 2019 story, the Wisconsin Center for Investigative Journalism reported that people Free the 350 has bailed out include “a homeless man who was charged with public urination, another homeless man who got into a fight while trying to retrieve his backpack from someone who had taken it and a 17-year-old who was robbing people to help pay living costs for himself and his mother.” Fighting and robbery would certainly count as violent crimes, and in these cases said violence had an economic context.
CV Vitolo-Haddad, an activist with Dane County Community Defense and the local IWW (Industrial Workers of the World) chapter, notes that violent-crime charges often take place in complex circumstances, especially for women. “The distinction between violent and nonviolent crime made by the sheriff’s department ignores the context in which violence happens,” Vitolo-Haddad says. “Many women are in prison for killing their traffickers or fighting back against domestic violence. It’s not as simple as whether someone was arrested for a violent charge.”
It’s true that Free the 350 has historically focused on bailing out people with lower bail amounts, but hat probably has more to do with resources than with distinctions between different kinds of criminal charges. Until recently, most bail funds like Free the 350 were working with scant funding and trying to maximize the number of people freed. The protests of the past six weeks have driven a wave of donations to bail funds around the country, bringing in so much money that some organizations are having a hard time figuring out what to do with it all. (Here’s a nationwide list of bail funds and how to donate to them.) They can now afford to expand their operations beyond small bail amounts. Additionally, if Free the 350 wants to bail out people with higher bail amounts and violent-crime charges… that’s perfectly legal and it’s their damn money.
Using publicity to trample on due process
If the Sheriff’s Office can criticize Dane County citizens for putting up bail money, what else will it target people for? Will we see press releases publicly shaming the accused for hiring lawyers, excoriating Public Defenders for taking on cases, demonizing defendants for entering not-guilty pleas or asking for jury trials? As if the criminal justice system didn’t already inflict enough intimidation and fear upon people, the Sheriff’s Office is sending the message that if criminal defendants take the mundane steps they’re allowed to take as human beings with basic rights, they too may be singled out for public abuse.
The Sheriff’s press release tries to menace us with the trope of violent young Black people unleashed on our streets. It also seems to rely on a generalized public ignorance of what bail is and how it works. Bail is a way of making sure people show up for their court dates and don’t flee. A judge determines the amount of bail, and whether to grant bail at all. If police and prosecutors have evidence that releasing someone on bail would endanger other people, the judge can set bail high or deny it. Being released on bail comes with conditions, and there are further consequences for violating them. If the Sheriff thinks these three people shouldn’t be out, why not criticize the judges who set bail?
Luckily and surprisingly, no actual news outlets in Madison ran uncritically with the press release. For his Madison365 story, Rob Chappell took the time to place it in context, talking with Dane County Supervisor Heidi Wegleitner and Freedom Inc.’s M. Adams to get a sense of the blowback from local officials and activists. Other outlets either had bigger fish to fry, or simply realized that people bailing out of jail are not in and of themselves newsworthy. Good on them—a little basic news judgment goes a long way.
Still, when police agencies send out press releases, they do so with a full understanding of their powerful relationship with media. Daily newspapers and local TV stations have an endless appetite for crime news. The brutal economics of media often place pressure on journalists to pump out low-effort, high-traffic content, and nothing feeds the beast like credulous crime reports. All too often, news outlets will take a press release or incident report from the cops, barely rewrite it if at all, ask no real questions, draw on no other sources, and publish the result as a news story. Police higher-ups and PIOs know that when they send something out to their press email lists, there’s a good chance their claims (along with images like mugshots) will be widely published without much modification or challenge.
What exactly was the media strategy here? That local news outlets would run with the release, display the included mugshots online and on TV, further demonizing and villainizing three young Black people? That citizens would be on wary lookout for three people the criminal justice system is already keeping tabs on? That coverage would stir up confusion and panic about the righteous work of Free the 350? It’s hard to ascribe intent, but easy to see how such things usually play out.
Does the Sheriff’s Office issue similar statements when white people post bail with the help of rich families and generational wealth? Was there similar outrage when a man accused of running over a Black woman with his truck bonded out with a paltry $350? What would they like Dane County residents to fear most: a rigged social and economic system that lets the privileged off easy, or a community bail fund that even on a good day has only a fraction of the power and resources of the carceral state?
