Monday, June 22, 2020

Checking In (And Some Thoughts on Charitable Giving and Due Diligence)

via Unsplash

I'm checking in with a few updates about my ongoing efforts to take concrete action against anti-Black racism and police violence.

First, my workplace may participate in pro bono projects related to the legal fight against police violence. I am eager for the opportunity to contribute. But my excitement to do this work is also tempered by my knowledge about how slowly the legal system moves in general (all my active court matters have been pending well over 18 months, and the prospect of any sort of satisfaction within the next 12 months are slim, if not impossible) and about how the odds are stacked against these efforts specifically (many people have discussed qualified immunity, including John Oliver's Last Week Tonight at around the 20 minute mark here; if I remember correctly from my clerkship - cases alleging police violence and abuse of prisoners are a significant percentage of many federal dockets -  that is only one of many significant obstacles to legal success).

Second, I'm not currently in the mood for much fashion-related shopping for myself, but I've been keeping a list of additional Black designers and Black-owned companies that fit my general tastes and price point. I'll need to put together a dedicated page for these, to make my recommendations easy to find and keep track of! In addition to my list from June 4, I'm also following some additional companies for potential future purchases:
  • Aliya Wanek - Clothing made to order or made in small batches in the California Bay Area. 
  • Third Crown - Jewelry company based in NYC. I like their bracelets!
  • Isobel and Cleo - Offering handmade knitwear and a selection of other products. 
  • Kemi Telford - Clothing, mostly made from beautiful, colorful printed cotton fabric. Based in the UK. 

Third, you may be aware that one of the bail funds I donated to recently, the Minnesota Freedom Fund ("MNFF"), came under some criticism gone viral on Twitter and other social media last week for only having spent ~$200,000 of the more than $20 million they've raised since late May. I believe it's well-documented that some of the initial viral tweets questioning MNFF came from known right-wing trolls, who were likely acting in bad faith. 

It's natural to have questions about how MNFF plans to use the money they've raised. As I noted on June 1, MNFF had already disclosed that they'd raised $20 million, several orders of magnitude more than they'd ever previously raised in a single year. By then, they were already practically begging people to donate elsewhere. But I understand they continued to receive further donations, for a total of ~$30 million.

I certainly didn't expect then to spend all $20 or $30 million in just two weeks. That's an unreasonable expectation. I also wouldn't expect them to share "receipts" about everyone they've bailed out. In my experience, such documents may perhaps be publicly accessible court records. But it'd be harmful to the community members they assist to wave around those records willy-nilly on social media, even in redacted form. (As an attorney, my name is on various public court documents, albeit mostly on behalf of clients, not in my personal capacity. But I'd still not enjoy it if people drew undue attention to those public records. And none of them have the stigmatizing effect of being associated with arrest or possible criminal charges.) 

Given these events and another recent news story about donations being sent to the wrong Black Lives Matter entity, I thought it might be good for me to explain some of my thought process when choosing entities to donate to for anti-racism and Black lives matter-related work. I refrained from sharing my thoughts earlier because I didn't want to give the impression that I thought my choice to favor mostly smaller, more grassroots efforts - over the well-established national entities like the NAACP LDF or Equal Justice Initiative, which also do important work - was better or more legitimate than anyone else's choices in this area. Plus, while I do some internet research-based due diligence before making a donation of any size (I gave $50 or less per organization, so I could spread my ~$350 across a large number of groups), I know I don't have enough knowledge or expertise for my donation to represent an actual endorsement. I don't know if any of these groups are the best and most effective at what they do. 

To be abundantly clear, I do not see any reason at this time to believe there is anything illegitimate or untoward happening with the MNFF donations. Admittedly, while I am an attorney (but not your attorney, and nothing in this blog should ever be construed as legal advice or the formation of an attorney-client relationship), I do not have any specific knowledge about either the laws governing nonprofits (whether federally or under Minnesota state law) or about any state or locality's bail system.* 

When I did my preliminary research into MNFF before making my donation on the late evening of May 29, and when I continued to follow their public statements afterwards, I saw many things that made me confident they were a credible organization. It was clear from MNFF's website that they were reasonably well-established, and had been paying bail for several years. I was aware their original mission included paying immigration bail, and this was perfectly fine by me. My first experience with charitable giving and bail was in relation to immigrant family detention under the Obama administration, as I've alluded to. I find immigration bail just as important and valuable as any other kind.

I was also made more confident by how vocal MNFF was about requesting that people direct their donations elsewhere, to a long list of other entities, including small local ones in their area, the GoFundMe for George Floyd's family, and other bail funds elsewhere. (Logically speaking, a bad actor would probably not ask people to stop giving them money. That they recommended small, local organizations also allows the inference that they're connected to and invested in their community.) Strictly speaking, my late evening donation on May 29 probably came "too late," they were already asking people  to send their money elsewhere. (Whenever I mentioned them here, I tried to make clear that new donations should go elsewhere, at MNFF's own request.) My only regret here is that I could have been better about honoring MNFF's stated wishes by donating to another organization local to them. 

I followed a similar process with my other donations, I do a preliminary Google and Twitter search to make sure things look right. A lot of the NYC-area bail funds commonly linked to on social media around early June, including by celebrities or large publications, did not pass this test. For example, I declined to give to The Liberty Fund in NYC because their website didn't feel right to me. My feelings were confirmed later by others more knowledgeable. (In my view, any NYC public defender who tweets in their own name and with their face associated with their Twitter account is likely to be knowledgeable and credible about local issues like this.) 

The NYC-based bail funds I ultimately donated to are... extremely informal, and less official-looking than the other NYC-based bail funds I looked at and decided not to donate to. For the protest-related bail fund, the donation was made over Venmo. Obviously, there's "risk" associated with donations done that way, and it's clearly not tax-deductible. But I had no reason to doubt the claim (again from a NYC public defender, vouched for by another public defender I've followed for a long time) that established 501(c)-type nonprofits apparently can't pay bail for felonies or some misdemeanors in New York.

As it turns out, the protest-related bail fund donation may not pan out in terms of actually serving the public the way I intended. I understand that - and this is surprising to me, as someone with a general awareness of how harsh most District Attorneys' offices in NYC can be - the most common outcome for arrested protestors in NYC was detention, sometimes for longer than 24 hours, and then release without charges, and thus, without bail.** In short, I - and possibly also the bail fund organizers - made an error in judgment about whether there would be a need for funds earmarked for protest bail. I'll admit, I'm not sure what happens to the money now. But even then, I don't regret it. I made an educated decision, and my educated decision didn't quite work out the way I thought it would.

One final note, though I don't believe this is actually relevant as to MNFF: Ours is not a country where one can steal $30 million - or even $1 million, I've seen some aggressive federal prosecutions over significantly less than that; at times, prosecutions of GoFundMe scams even become big news - from right in front of the public's eyes in circumstances like these. Now, there definitely are circumstances in which very sophisticated actors, the kind that can afford expensive accountants and biglaw-tier attorneys while formulating their plans, could make off with seven or eight or nine figures in ways that look and sound like theft, or appear otherwise suspect, to the general public... But that's clearly not at issue here.

* My work experience leans federal, and I'm not aware of any instance where bail amounts have had any particular significance for a federal defendant: The big question there is whether the Court will release the person on bail or not, or whether the Court decides to revoke bail later. In recent years, people who have famously had federal bail revoked for nonviolent crime include "Pharma Bro" Martin Shkreli (after a long course of poor conduct and several warnings) and Billy McFarland, the guy behind Fyre Festival (for initiating a new fraudulent scheme while out on bail). 

** One major well-publicized exception is in a federal prosecution, which would likely be outside the scope of the work of the bail funds I donated to, in any case. Those individuals were briefly out on bail under the district court's ruling, which was then reversed by the Second Circuit pending the appeal of the bail decision. So it's also not a lack of money that's at issue there. 

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