INDIANAPOLIS — American Civil Liberties Union of Indiana and the Bail Project announced a lawsuit on Wednesday against the state over whether a newly enacted law is constitutional and targets The Bail Project.
The lawsuit argues HEA1300 violates The Bail Project’s First Amendment rights. HEA1300 puts restrictions on charitable bail organizations by restricting who it can pay bail for.
“The First Amendment allows us all to advocate for our positions and it’s commonly understood that one way of doing that is with money,” Ken Falk, legal director of the ACLU of Indiana, said. “The Supreme Court has told us that if you’re going to impinge on that right, limit that right, there must be very good reasons for doing so.”
Under the new law, which goes into effect on July 1, charitable organizations can only pay bail for an indigent person who is not charged with a crime of violence or a person charged with a felony who does not have a prior conviction for a crime of violence. They are not able to bail out more than three people in a 180-day period without a license.
“The poorest Hoosiers in the community who are presumed innocent under the law, regardless of the charge,” Twyla Carter, The Bail Project’s National Director of Legal & Policy, said of who the Bail Project insists this measure will most impact. “Once the judge has made that determination about this person’s ability to leave the jail and sets a dollar amount, you now have wealth-based detention because people who can afford it are going to get out.”
The 16-page lawsuit claims The Bail Project’s actions are a form of advocacy protected under the First Amendment. The suit states “requiring the Bail Project to restrict its expressive activities outside of Indiana to obtain a license from [The Department of Insurance] for its activities inside Indiana represents an unconstitutional condition on its expressive activity and advocacy and violates the First Amendment.”
“If a person is accused of a crime and they’re in jail, again the judge sets that amount, the church, anyone else, the bail bond industry, anyone else can go in and bail that person out,” Carter said. “We are the only ones who are not, therefore our advocacy rights are being violated and our equal protection rights are being violated.”
Attorney General Todd Rokita will represent the state and the statute. He said the Bail Project’s allegations are not a violation of the First Amendment.
“This is taking money and injecting it into the criminal justice system to prove a point, perhaps, but to potentially impede on other people’s rights,” Rokita said. “Namely their safety, and to cause a disincentive where there used to be an incentive for a person to return to face justice. You now could possibly be creating a disincentive so it goes way beyond, in our opinion, the right of free speech.”
Rokita added, “Your rights are only as good as long and until they impede on others’ rights, and in this case, safety. So, I think it’s a very novel concept that the bail project is putting forward here.”
HEA 1300 was signed into law shortly after our investigation showed at least three people who were bailed out, at least in part, by the Bail Project were then charged with violent crimes – including murder and the stabbing of two police officers. Yet, the Bail Project points to its other clients, hundreds of which it says need help getting out of jail before trial.
“We know this law was started because of some very rare but tragic cases that were in the media, but it’s very rare that those occurrences occur,” Walker said. “People forget that there are hundreds of other people that are not making it on the news. These are the families that we are impacting by curtailing our work.”