Through Emil Lever | December 2, 2022 at 8:02 p.m. EST
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The Bail Project, an organization that breaks criminal suspects out of prison for free in 20 states to fulfill a mission to abolish bail, will go to the Seventh Circuit next week to challenge an Indiana law restricting its ability to be released unfairly confining destitute defendants back to their communities.
The Indiana-based branch of the Bail Project filed its lawsuit in May to challenge House Bill 1300, an Indiana state statute that creates the category of “bail bonds organizations” and prohibits such organizations from posting bail for defendants who have been charged with violent crimes or convicted of a violent crime in the past. The Bail Project, which says this law is tailored to do this, seeks to overturn the lower courts’ rulings and prove that its practice of paying bail is a First Amendment-protected advocacy.
Disputes before the Seventh Circuit are scheduled for Wednesday.
Under the new law, nonprofit bailout organizations are subject to licensing by the Indiana Commissioner and can only be licensed by refusing to bail defendants charged with violent crimes or who have been convicted of violent crimes in the past.
US District Judge James Patrick Hanlon of the Southern District of Indiana denied the Bail Project’s request for an injunction to stay the law’s enactment June 29, saying paying bail expresses no opinion and none by the first change protected activity is . Posting bail does not express an opinion and requires an explanatory speech, meaning it has no authority of its own, Judge Hanlon noted.
The Bail Project says criticism of his work from Indiana politicians, judges and defendant, Indiana Insurance Commissioner Amy L. Beard, proves otherwise. The organization’s practice of paying bail free of charge has been described as “apparently pejorative, promoting a ‘social experiment'”.
Critics of the Bail Project perceive it as advocacy, and the action it is taking as part of its advocacy — paying bail in cash — is therefore meaningful, the organization wrote in a briefing.
“A person who knows that the bail bond project is paying bail will understand that it is being done for a purpose. It is being done to advance his advocacy goal, which the Commissioner has called his ‘social experiment’. It’s no secret because that’s what it has to do,” the organization’s Oct. 24 briefing said.
In addition, the Bail Project has been subject to content restrictions because it is barred from rescuing a specific type of suspect if another person or organization retains the right to do so, the group says. Rescuing individuals accused of violent crimes, or individuals accused of crimes who have a conviction for violent crimes, is central to the Bail Project’s message that bail is obsolete in general, not just for those accused who meet a specific criterion of nonviolence.
Before the law was enacted, “any person or entity — including a complete stranger — could post cash bail on a criminal defendant once an Indiana court had ordered that person’s cash bail,” the Bail Project wrote. The law creates an exception in the ability to pay bail intended only for the Bail Project, which the brief says is Indiana’s only non-profit bail organization.
The Bail Project alleges in the brief that the law violates its rights to equal protection by preventing the organization, and only that organization, from bailing out defendants charged with violent crimes and those with violent crimes on their records , while “All individuals and organizations in Indiana and the rest of the world may pay this bail.”
Indiana cannot simply invoke the government’s interest in public safety to curb the bail project, according to the nonprofit. Indeed, a bail hearing before a judge is the government’s opportunity to weigh public safety concerns against the benefits of releasing the accused, allowing a person who is certain of being released on bail by a loved one or bailiff , according to the letter, is sure to be rescued by the Bail Project.
“The commissioner does not articulate why the state has the need to guess after the fact,” the Bail Project wrote.
The Bail Project’s different treatment compared to for-profit bail bondsmen and private individuals is justified, according to the officer, because of the different ways of working.
In particular, the Bail Project cannot be trusted to bail defendants in connection with violent crimes, as it only encourages defendants through text reminders and other supportive means to show up for their court dates and does not use bailiffs agents to physically hunt them down when they do the case does not appear, the commissioner said in a reply.
The Bail Project says this argument is unfounded because its clients are less likely to forfeit bail than those whose bail is paid by a bail bond agent: 95% of its clients make their court appointments in Marion County, Indiana, and 92% of those clients do from Bail Project across the country are doing this.
“The commissioner does not present a cogent argument as to why preventing a company from paying bail for an individual who has been granted bail by state courts while everyone else can post bail protects public safety,” wrote the bail project. “In any event, the evidence is unchallenged that those bailed by the bail bond project are 20 percent less likely to be arrested on new charges than those released on bail paid by the commercial bail industry.”
Both parties could not be reached for comment on Friday.
The Bail Project is represented by Kenneth J. Falk, Gavin M. Rose and Stevie J. Pactor of the ACLU of Indiana.
The Indiana Insurance Commissioner is represented by Assistant Attorneys General Caryn Nieman Szyper, Jefferson S. Garn and Lydia Ann Golten.
The case is Bail Project Inc. v. Commissioner, Indiana Department of Insurance, 22-2183 in the US Circuit Court of Appeals for the Seventh Circuit.
–Edited by Karin Roberts.
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