The Bail Project sues Indiana over law restricting who they bail out

The Bail Project on Wednesday filed a lawsuit against the state of Indiana to nullify a new law limiting who the charitable organization can bail out of jail, arguing the measure infringes on the group's constitutional rights.

The filing comes just under two months after Indiana Gov. Eric Holcomb signed into law House Bill 1300, which prevents charitable bail groups from bailing out anyone charged with a violent crime in Indiana, as well as anyone with a past conviction for a violent crime who is charged with any new felony.

An IndyStar investigation published in March found that the legislation was largely driven by misleading media reports and politically-motivated finger pointing. Opponents of the measure have argued it will unfairly impact the ability of poor Hoosiers to get out of jail while awaiting trial.

In the lawsuit, lodged against the state Department of Insurance, The Bail Project and the ACLU claim the law violates the group's First Amendment rights because the organization considers paying bail "expressive advocacy work," according to the complaint filed in the Southern District of Indiana. The Bail Project, the group holds, exists to make the argument that cash bail is harmful and unnecessary.

"When we post bail, we're essentially advocating before the courts, saying: 'Let us show you that money was not necessary in the first place because this person will return, even though they have no financial obligation to us,'" Camilo Ramirez, the organization's communications director, told IndyStar.

The law also raises an equal protection issue, according to the suit. HB1300 restricts only charitable groups from who they can bail out – both commercial bondsmen and family and friends can continue to pay bail for people accused of violent crimes in Indiana.

"This is specifically targeted at charitable bail organizations," said Kenneth Falk, legal director for the ACLU of Indiana. "To the best of my knowledge, there's only one charitable bail organization in Indiana, and that's The Bail Project."

The lawsuit was filed against the state Department of Insurance, Falk said, because that's the agency The Bail Project must register with under HB1300. That department can revoke The Bail Project's license for problems like "incompetence" and "untrustworthiness," descriptions the group argues are vague.

"The Bail Project requires certainty regarding what it must demonstrate to satisfy these standards and the standards are vague and uncertain and provide the Commissioner unlimited discretion to deny The Bail Project's application for a license, or revoke one once it is awarded," the group wrote in the complaint.

'No justification'

The Bail Project came under intense scrutiny by local media and state lawmakers in mid-2021 following reports that people bailed out by the group were later accused of violent crimes while out on bail.

But much of the information circulating Marion County, where the organization mainly operates, was incomplete or featured misleading statistics. Some reports blamed The Bail Project for bailing out people later accused of murder when, in fact, the person had last been freed by a commercial bond agent or a friend. Others failed to mention the involvement of other entities, like commercial bondsmen, in certain cases that did involve The Bail Project.

Commercial bondsmen largely avoided such scrutiny, and bail industry leaders, who stood to benefit from the loss of a nonprofit competitor, advocated for the restrictions against charitable bail groups.

Supporters of the legislation argued the law would bring The Bail Project in-line with the commercial industry by requiring it to register under the department of insurance. It's OK for bondsmen to bail out people accused of violent crimes, they claimed, because bondsmen have the ability to track down defendants who skip court dates.

Still, IndyStar's analysis of the 225 murder cases filed in Marion County since the nonprofit's inception in December 2018 revealed bond agents bailed out 10 people who were later accused of murder compared to The Bail Project's three during that same period.

The Bail Project in the complaint argued "there is no justification, rational or otherwise," for only restricting charitable bail groups.

'Impact is on the families'

Samuel Marcosson, a law professor at the University of Louisville, said The Bail Project makes a "really strong" argument when it comes to potential First Amendment issues.

There are different forms of speech protected by the First Amendment, Marcosson told IndyStar, citing the landmark Citizens United v. Federal Election Commission case, and that includes using money to express a point of view.

"It seems to me that if a bail project or any group wants to get together to make a commentary about bail in itself, about the way the bail system affects people... they are making a political point about the bail system," Marcosson said. "And they're using their money to do that."

The Bail Project's status as a charitable organization, however, leaves the group open to state scrutiny, the professor noted. Those organizations often have a different relationship to a defendant than a family member or friend.

"Under equal protection principles," Marcosson, "if the government can show that they are treating one group or one individual differently because they are differently situated in a reasonable way that's relevant to the purpose of the law, then they can generally do that."

Meanwhile, opponents of the law maintain it will only negatively impact poor people, who will be made to remain in jails, unable to afford bond.

Twyla Carter, the national legal and policy director at The Bail Project, said the legislation entrenches a "double standard" for people who can afford bail and those who cannot.

"This law, while it targets our particular advocacy, the real impact is on the families who depend on our organization when they cannot afford to pay for bail," Carter told IndyStar. "It's the judge who sets the bail amount. It should not matter who pays for it."

The Bail Project, Carter said, has yet to meet with Marion Superior Court judges to discuss how the group operates. They continue to work in Marion County.

Contact Lawrence Andrea at 317-775-4313 or [email protected]. Follow him on Twitter @lawrencegandrea.