A federal court has upheld a state law that regulates The Bail Project and other charities that pay bail for poor people who face criminal charges.
The Seventh Circuit U.S. Court of Appeals in Chicago rejected The Bail Project's claim that paying bail on someone's behalf is a form of free speech that should be protected by the U.S. Constitution.
"The Bail Project’s payment of bail is not inherently expressive conduct," the court majority wrote in the 24-page opinion handed down Aug. 3. "The distinctions HEA 1300 draws between charitable bail organizations and other bail payors is rationally tied to Indiana’s legitimate interest in regulating its pretrial detention system."
Judge Candace Jackson-Akiwumi disagreed with the majority and said The Bail Project deserves First Amendment protection.
"The Bail Project’s conduct is indeed expressive because the organization intends to convey a particularized message," Jackson-Akiwumi wrote in her dissent, "and not only was the likelihood great that those who viewed the conduct would understand that the organization intended to convey a message, the record shows that those who viewed the conduct did understand as much."
The Bail Project and the ACLU of Indiana have been seeking to block and overturn regulations on charitable bail organizations that took effect last year.
That law, HEA 1300, requires charitable bail organizations be licensed and regulated by the Indiana Department of Insurance and limits who can be bailed out.
The Bail Project and similar charities are allowed to post bail for most people charged with misdemeanors or non-violent felonies, but the law bars the groups from assisting people accused of violent felonies or those who have ever been convicted of a violent felony.
In a statement emailed to WRTV, Katie Poor, The Bail Project's general counsel, expressed disappointment and promised to keep fighting.
"This law created a double standard in how nonprofits that provide free bail assistance are treated versus bail bond companies that profit from bonding people out," Poor said. "We plan to ask for rehearing before the full court."
Supporters of the law say it regulates non-profit groups like The Bail Project in the same way the state regulates private bond companies.
"I think if you're going to come in, and you're going to try to destabilize the bail system, I think the legislature has the right to say something about that," said Jeff Clayton, executive director of the American Bail Coalition. "I think it's fair ruling that the Indiana legislature could choose to do something."
Clayton's organization represents about 13,000 private bail agents in 46 states, including about 500 in Indiana.
The Bail Project and others who oppose the law say it creates a two-tiered justice system where poor people sit in jail while those with money remain free.
On its website, The Bail Project says its ultimate goal is to "take money out of justice and to create a pretrial system that is more just, equitable and humane."
The Bail Project paid bail for about 1,000 people in Marion and Lake counties since it began operating in Indiana in 2018.
The group was sharply criticized last year after three clients it helped make bail were later accused of committing violent crimes.
In a March 2022 interview, The Bail Project's David Gaspar told WRTV the group does more than just pay bail. It connects its clients with mental health services, transportation, housing and other resources.
"We take the presumption of innocence very seriously, and our goal is to ensure people have equal access to this Constitutional protection regardless of how much money they have in their bank account," Gaspar said.
MORE: Indianapolis gave $150K to group that bailed out man accused of killing girlfriend | FOP president demanding that local leaders close the justice system's 'revolving door' | Prosecutor files attempted murder charges against man accused of luring, stabbing IMPD officers | Mom wants The Bail Project reined in after her son was gunned down in Indianapolis | Senate proposal would require additional oversight for The Bail Project | Lawmakers adopt new rules for The Bail Project: Bill goes to the governor's desk | IU social policy center report blasts new state law that limits The Bail Project |Amid scrutiny, Bail Project talks about its mission and criteria for helping defendants
Contact WRTV reporter Vic Ryckaert at victor.ryckaert@wrtv.com or on Twitter: @vicryc.
