The Bail Project sues state over constitutionality of law limiting charitable bailouts

Charitable bail organization The Bail Project has filed a complaint in federal court alleging a new Indiana law restricting whom it can bail out of jail infringes on its constitutional rights.

Filed Wednesday in the U.S. District Court for the Southern District of Indiana by The Bail Project and the American Civil Liberties Union of Indiana, the lawsuit alleges House Enrolled Act 1300 violates The Bail Project’s First Amendment rights and its rights under the equal protection clause of the 14th Amendment.

Plaintiffs request that HEA 1300 be declared unconstitutional and that the Indiana Southern District Court enter a preliminary injunction to later become permanent.

HEA 1300 was authored by Rep. Peggy Mayfield, R-Martinsville, and will take effect July 1. The new law defines “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 under HEA 1300.

Opponents of the bill have argued the measure will keep poor Hoosiers in jail and won’t keep bail bond companies from bailing out individuals accused of violent crimes.

The lawsuit names the commissioner of the Indiana Department of Insurance, in her official capacity, as the defendant, as the new law will require The Bail Project to register with the agency.

“This new law singles out charitable bail organizations in Indiana, which for all practical purposes means The Bail Project,” Ken Falk, legal director of the ACLU of Indiana, said in a news release. “This unconstitutional attack on The Bail Project will hurt low-income Hoosiers in the criminal legal system who will have to sit in jail while presumed innocent because they cannot afford bail.”

Since 2018, The Bail Project has provided free bail assistance in Indianapolis to low-income individuals and supportive services upon release, including court reminders, free transportation to court, referrals to housing, substance use treatment, employment and other resources based on the person’s needs. It began providing bail services in Lake County in 2020.

In a report submitted to the Marion Superior Court in March, data collected by the organization showed that Bail Project clients had made over 3,686 court appearances in Indianapolis, with an overall appearance rate of 95%, since late 2018. Of the 980 bailouts, 630 cases were completely dismissed, and 85% of the Indianapolis clients did not serve additional jail time, the report states.

According to the report, 73% of The Bail Project clients in Indiana were not arrested for a new allegation, and of those who were arrested for a new allegation, 82% were rearrested for misdemeanors or Level 5 or Level 6 felonies.

Currently, The Bail Project is operating in 30 jurisdictions in 20 states.

The complaint alleges at least three First Amendment violations:

  • “Requiring The Bail Project to restrict its expressive activities outside of Indiana to obtain a license from defendant for its activities inside Indiana represents an unconstitutional condition on its expressive activity and advocacy and violates the First Amendment.
  • Requiring The Bail Project to be licensed based on uncertain and vague standards that leave its ability to engage in its expressive activity at the complete and standardless discretion of the Commissioner violates the First Amendment.
  • Prohibiting The Bail Project’s expressive activity by limiting for whom it can pay cash bail, even though the bail amount has been approved by a state court, violates the First Amendment.”

Finally, the lawsuit argues that “(p)rohibiting The Bail Project’s expressive activity by limiting for whom it can pay cash bail, even though no limitation is placed on other persons or entities, and even though no limitations are placed on bail bond agents, violates the Equal Protection Clause of the Fourteenth Amendment.”

“The Bail Project exists because the use of cash bail discriminates against the poor and erodes the presumption of innocence. The data is also clear that Black communities bear the brunt of these abuses,” Twyla Carter, national director of legal and policy at The Bail Project, said in a news release “Our goal from day one has been to demonstrate that cash bail is not needed to ensure return to court and to offer solutions for a more effective, equitable, and humane pretrial system. It is unconscionable that instead of working to take money out of the system and make it more just, members of the legislature and the governor chose to target one of the only lifelines poor Hoosiers have when their liberty and due process rights are at stake.”

The case is The Bail Project, Inc. v. Commissioner, Indiana Department of Insurance, in her official capacity, 1:22-cv-862.

No attorney had entered an appearance on behalf of the Department of Insurance as of Indiana Lawyer deadline. The department will likely be represented by the Office of the Indiana Attorney General, which defends state agencies.

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