The Bail Project loses bid to stop ‘charitable bail’ bill from taking effect Friday

The Bail Project has failed to convince a federal judge to prevent a new law from going into effect tomorrow that will limit whom it can bail out of jail.

In a 20-page order handed down Wednesday, U.S. District Court for the Southern District of Indiana Judge James Patrick Hanlon concluded the charitable bail organization did not show a likelihood of success on the merits to justify its motion for preliminary injunction.

Last month, the American Civil Liberties Union of Indiana and The Bail Project filed the complaint alleging House Enrolled Act 1300, authored by Rep. Peggy Mayfield, R-Martinsville, violated the organization’s First Amendment rights and its rights under the equal protection clause of the 14th Amendment.

The new law defines a “charitable bail organization” and prevents any person charged with a violent crime from being bailed out by a charitable bail group. Anyone charged with a new felony who has a past conviction of a violent crime also can’t receive bail assistance from charitable bail groups, per the legislation.

Under HEA 1300, all charitable organizations must register with the Indiana Department of Insurance. The state’s insurance commissioner is named as the defendant in the lawsuit.

Opponents of the bill have argued it will unfairly impact low-income people while supporters have said it will hold the organization to greater accountability.

In its motion for preliminary injunction, The Bail Project argued payment of cash bail on behalf of individual defendants is “pure speech” because that action is “expending money to advocate for matters of interest.”

But Hanlon wasn’t convinced, denying the plaintiff’s arguments that the U.S. Supreme Court decisions in Citizens United v. Federal Election and Meyer v. Grant supported its position.

“The cases that The Bail Project relies on do not show that paying bail is speech,” Hanlon wrote. “… The Bail Project has not argued that paying cash bail is directly attached to speech or explained how it could implicate speech or public debate in a similar way, so it has not shown a likelihood of success on this theory.”

Further, Hanlon, relying heavily on Tagami v. City of Chicago, 875 F.3d 375 (7th Cir. 2017), and Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006), found paying cash bail isn’t inherently expressive conduct. The judge also denied a vagueness claim.

On the 14th Amendment claim, The Bail Project argued HEA 1300 violates the equal protection clause because it treats charitable bail organizations differently than anyone else who might pay bail, without a rational reason for doing so.

In response, the commissioner argued the law could survive rational-basis review because it’s related to the legitimate government interest of “regulating major actors in the bail industry differently based upon their distinct responsibilities and accountability in the criminal justice system.”

Hanlon again sided with the defendant.

“The Bail Project argues that Indiana cannot rationally do so because it doesn’t also regulate, for example, churches or individuals with the financial means to pay cash bail for others. But that doesn’t make it necessarily irrational to regulate entities that ‘exist[ ] for the purpose of depositing cash bail,’ Ind. Code § 27-10-2-4.5(b),” Hanlon wrote. “The General Assembly could reasonably think that organizations with such a purpose — ‘major actors in the bail industry,’ as the Commissioner describes them — are likely to have policy preferences different than its own.

“And it could reasonably be concerned that, without regulation, charitable bail organizations wouldn’t have the financial accountability and incentives that the statutory scheme otherwise assumed were present,” he continued. “That’s enough to survive rational-basis review here.”

The case is The Bail Project Inc. v. Commissioner, Indiana Department of Insurance, 1:22-cv-00862.

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