The Bail Project loses appeal, meaning Indiana law limiting the nonprofit remains active
A federal court has decided not to suspend an Indiana law that restricts who nonprofit bail groups can help get out of jail in Indiana.
The law, known as House Enrolled Act 1300, creates a new regulatory scheme for charitable bail organizations that took effect July 2022. It says those organizations can't bail out people accused of violent crimes, or people facing a felony charge that have a past violent crime conviction on their record. It also requires a $300 certification fee paid to the state every two years.
The Bail Project, a nonprofit that provides bail for defendants with limited resources, says they appear to be the only group in the state impacted by the law. It was passed after the group faced criticisms by media and politicians — some of which were misleading — for providing bail to defendants who later committed violent crimes.
With help from the ACLU of Indiana the nonprofit sued the state, arguing it illegally singled them out and undermined the organization’s right to express its criticisms of the cash bail system by curtailing their activity in Indiana.
But two judges on a 3-judge panel at the Seventh Circuit Court of Appeals disagreed with those arguments in a decision last week. They said Indiana has a legitimate interest in regulating its bail and pretrial detention system.
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“A person could be paying bail to secure a loved one’s freedom pending trial, or they could be performing a purely charitable act to help an indigent defendant,” wrote Seventh Circuit judge Thomas L. Kirsch II on behalf of the majority last Thursday. “But whatever their motivation for doing so, the point is that nothing about the act itself inherently expresses any view on the merits of the bail system.”
The Bail Project says it will challenge the decision
The nonprofit told IndyStar it was "disappointed" in the judges' decision and plans to ask for a rehearing in front of the entire court. "This law created a double standard in how nonprofits that provide free bail assistance are treated versus how bail bond companies that profit from bonding people out are treated," it said in a statement.
The third Seventh Circuit judge who reviewed the appeal, Candace Jackson-Akiwumi, disagreed with her colleagues. She wrote in her dissent The Bail Project's work falls under the First Amendment because it communicates the nonprofit's belief that the cash bail system unjustly keeps poor people behind bars before they've faced a trial.
The majority upheld an earlier decision by a judge in federal Southern District of Indiana court that struck down The Bail Project’s request for a preliminary injunction. That would have placed a temporary freeze on the law.
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The Bail Project included its ask for a preliminary injunction in a broader lawsuit that aims to strike down the law, arguing it is unfair because it doesn't restrict families or bail bond agents from playing a role in bailing out people accused of violent crimes. The lawsuit has been on hold while the Seventh Circuit reviewed the lower court's decision.
Nonprofit has assisted 1,000 people in Indiana since 2018
The organization has provided cash bail and supportive services to about 1,000 people in Lake and Marion counties since it started working in Indiana in 2018. The vast majority of those were being detained in Marion County, where the organization says 95% of its clients made an appearance in court after leaving detention. It hasn't bailed out anyone since Indiana's law took effect.
Last year an IndyStar investigation found some criticisms aimed at the group included misleading data or didn't mention the role played by commercial bondsmen.
Supporters of the law say it will force the nonprofit to align with the commercial industry by requiring the group to register under the Department of Insurance. Bondsmen, they say, can track down defendants accused of violent crimes who skip court dates.
Opponents say it will unfairly impact lower-income people from leaving detention as they await trial.
IndyStar reporter Sarah Nelson contributed.
Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at jmagdaleno@indystar.com. Follow him on Twitter @IndyStarJohnny
This article originally appeared on Indianapolis Star: The Bail Project loses appeal; law limiting nonprofit still in effect
