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ACLU challenges Indiana bail law targeting nonprofits

Opponents of the law claim that it solely targets a nonprofit named The Bail Project which advocates for the end of cash bail.

INDIANAPOLIS (CN) — The ACLU is challenging a new bail law that they claim creates unlawful restrictions on nonprofit organizations who assist criminal defendants with paying cash bail.

The lawsuit was filed in federal court on Wednesday by the ACLU of Indiana and claims that the new law places unconstitutional restrictions on charitable bail organizations and was aimed specifically at the lawsuit’s plaintiff The Bail Project.

The Bail Project’s stated mission as a nonprofit is to advocate for an end to cash bail and mass incarceration and does so by paying the bail for pre-trial defendants who lack the money to pay themselves.

They seek an injunction against the law, stating that it places unconstitutional restrictions on their ability to continue to advocate in the same way, and singles them out as they are the only organization in Indiana paying cash bail on a continual basis for criminal defendants.

“This new law singles out charitable bail organizations in Indiana, which for all practical purposes means The Bail Project,” said Ken Falk, the Legal Director of the ACLU of Indiana. “This unconstitutional attack on The Bail Project will hurt low-income Hoosiers in the criminal legal system who will have to sit in jail while presumed innocent because they cannot afford bail.”

 The law known as House Bill 1300 is slated to take effect on July 1, and regulates organizations that pay the bail of more than three individuals in a 180-day period and requires such groups to obtain certification. The lawsuit takes aim at the certification requirements, claiming that they are vague and left at the discretion of the commissioner of the Indiana Department of Insurance.

Under the new law, once certification is obtained it would then prevent The Bail Project from paying cash bail for defendants accused of violent crimes or who are facing felony charges and have a past conviction of a violent crime. Violating this rule would allow the government to revoke certification.

The lawsuit argues that The Bail Project’s actions of paying cash bail for low-income individuals is a form of advocacy that is protected under free speech laws.

“Requiring The Bail Project to be licensed based on uncertain and vague standards that leave its ability to engage in its expressive activity at the complete and standardless discretion of the Commissioner violates the First Amendment,” the lawsuit states.

Other portions of HB 1300 also come under fire, including language that states cash bail can be posted by bail bond agents, friends, families and churches for those accused of violet crimes, while not allowing charitable organizations to do the same.

Treating the Bail Project and other potential charitable organizations differently for the purposes of who can pay cash bail, violates the Equal Protection Clause of the Fourteenth Amendment, according to the lawsuit.

“The Bail Project exists because the use of cash bail discriminates against the poor and erodes the presumption of innocence. The data is also clear that Black communities bear the brunt of these abuses,” said Twyla Carter, National Director of Legal and Policy at The Bail Project. “Our goal from day one has been to demonstrate that cash bail is not needed to ensure return to court and to offer solutions for a more effective, equitable, and humane pretrial system. It is unconscionable that instead of working to take money out of the system and make it more just, members of the legislature and the governor chose to target one of the only lifelines poor Hoosiers have when their liberty and due process rights are at stake.”

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