Bail Project Loses Appeal Against Indiana Commissioner of Insurance Paving Way for National Regulation

The national Bail Project, who posts bail for criminal defendants and was recently regulated by the Indiana Legislature, has lost its efforts to stop the law in the Federal United States Court of Appeals for the Seventh Circuit[1].  The Indiana Legislature required the Bail Project to become licensed, and then limited certain violent and felony charges in which the Bail Project could post bail.  The Bail Project had filed a lawsuit in federal court challenging the law, which was lost, only to then file an appeal, which has also been lost.

The Court made quick work of the Bail Project’s two arguments on appeal.  First, the Court held that the Bail Project’s act of posting bail on its own is not protected speech.  The Court held that "nothing about the act itself inherently expresses any view on the merits of the bail system.”  In other words, the Bail Project’s advocacy in regard to its act of posting bail is the speech.

Second, the court held that the Indiana Legislature and other legislatures absolutely can regulate charitable bail funds like the national Bail Project.  Said the Court: "Indiana has a legitimate interest in regulating its pretrial detention and bail system, and HEA 1300’s regulatory scheme is rationally related to that interest.”  The court noted that "charitable bail organizations have different incentives, resources, and ties to the community than other bail payors, and therefore, that it was appropriate to treat them differently than bail payors who risk their own money and weigh their own safety to bail out a defendant.”

“This is a sound and historic defeat for the Bail Project and will send a green light to all other state legislatures to regulate charitable bail funds, like the Bail Project.  Releasing dangerous criminals who would otherwise be stuck in jail on get out of jail free cards not only harms the public, it actually reinforces why we need bail—to keep the dangerous offenders in jail who are unable to secure their release that the Bail Project would otherwise set free, or when dangerous defendants are released they are done so with a collection of real economic incentives designed to guarantee appearance and protect public safety.”

 

Jeff Clayton, ABC Executive Director

 

So, the Bail Project can no longer use the bail system to make their point if they follow the rules.  But state legislatures can cut off their access to messing around with the criminal justice system in the interest of regulating the pretrial detention system, which is the big message of this case.  Bail funds have different incentives than private payors, and thus may be regulated.

At the end of the day, one wonders whether the Bail Project would do a better job advocating for the precise legal changes they want rather than bailing out dangerous people who would be otherwise be in jail due to burning all their bridges with friends and family.  If you are against money bail, then go advocate for that, rather than going and doing outrageous things that obfuscate and confuse your message rather than reinforce it.

[1] https://ambailcoalition.org/download/19/court-cases/6454/the-bail-project-appeal-2023.pdf