The Bail Project, an organization that bails criminal defendants out of jail for free in 20 states in service of a mission to abolish cash bail, is heading to the Seventh Circuit next week to challenge an Indiana law that it says unfairly restricts its ability to release indigent defendants back to their communities.

The Indiana-based arm of the Bail Project filed its lawsuit in May to contest House Bill 1300, an Indiana state law creating the category of "charitable bail organizations" and restricting such organizations from paying bail for defendants accused of violent crimes or those convicted of a violent crime in the past. The Bail Project, which says this law is tailored to target it, is seeking to overturn lower courts' rulings and prove that its practice of paying bail is advocacy protected by the First Amendment.

Arguments in front of the Seventh Circuit are set for Wednesday.

Under the new law, charitable bail organizations are subject to licensing by the Indiana commissioner, and can only be licensed if they deny bail to defendants who are charged with violent crimes or have past violent crime convictions.

U.S. District Judge James Patrick Hanlon of the Southern District of Indiana denied the Bail Project's bid for a preliminary injunction to suspend the law from going into effect on June 29, saying paying bail does not express an opinion and is not a First Amendment-protected activity. The act of paying bail is not expressive of an opinion, and requires explanatory speech, meaning it doesn't have any expressive power on its own, Judge Hanlon found.

The Bail Project says criticisms of its activity by Indiana politicians, judges and defendant-appellee Indiana Insurance Commissioner Amy L. Beard prove just the opposite. The organization's practice of paying bail at no charge has been labeled "seemingly pejoratively, as promoting a 'social experiment.'"

The Bail Project's detractors perceive it as an advocacy organization, and the actions it takes as part of its advocacy — paying cash bail — are therefore expressive, the organization wrote in a brief.

"A person knowing that the Bail Project is paying bail will understand that it is being done for one purpose. It is being done to advance its advocacy goal, what the commissioner has labeled its 'social experiment.' There is no mystery as this is what it exists to do," the organization's Oct. 24 brief reads.

Furthermore, the Bail Project has been subjected to a content-based restriction, because it is restricted from bailing out a particular kind of defendant when any other person or organization retains the right to do so, the group says. Bailing out people accused of violent crimes, or those who are charged with felonies and have a violent crime conviction on their record, is central to the Bail Project's message that bail is obsolete in general, not just for defendants who meet a particular criterion of nonviolence.

Before the law was enacted, "any person or organization — including a perfect stranger — could pay cash bail for a criminal defendant once an Indiana trial court set cash bail for that individual," the Bail Project wrote. The law creates a carve-out in the ability to pay bail intended only for the Bail Project, which is the only charitable bail organization in Indiana, according to the brief.

The Bail Project contends in the brief that the law violates its equal protection rights, because it bars the organization and only that organization from bailing out defendants charged with violent crimes and those with violent crimes on their records, while "all individuals and organizations in Indiana and the rest of the world can pay that bail." 

Indiana cannot simply invoke the government's interest in public safety to restrict the Bail Project, according to the nonprofit. A bail hearing in front of a judge is in fact the government's opportunity to weigh public safety concerns against the benefits of setting the defendant free, so a person who is safe to be bailed out by a loved one or by a bail bondsman is safe to be bailed out by the Bail Project, according to the brief.

"The commissioner does not articulate why the state has the need to, in effect, second-guess trial courts," the Bail Project wrote.

According to the commissioner, treating the Bail Project differently from for-profit bail bondsmen and private individuals is justified based on the different ways they operate.

Specifically, the Bail Project cannot be trusted to bail out defendants associated with violent crimes because it encourages defendants to show up to their court date only through text reminders and other supportive means, and does not use bail bond agents to physically hunt them down if they do not appear, the commissioner said in a response brief.

The Bail Project says this argument is unfounded, because its clients are less likely to skip bail than those whose bail is paid by a bail bond agent: 95% of its clients make their court dates in Marion County, Indiana, and 92% of the Bail Project's clients nationwide do so.

"The commissioner presents no cogent argument as to why restricting one entity from paying bail for a person granted bail by state courts protects public safety while all others can pay the bail," the Bail Project wrote. "In any event, the evidence is uncontested that those for whom the Bail Project posts bail are 20 percent less likely to be arrested for new charges as those who are released on bonds paid by the commercial bail bond industry."

Neither party could be reached for comment Friday.

The Bail Project is represented by Kenneth J. Falk, Gavin M. Rose and Stevie J. Pactor of the ACLU of Indiana.

The Indiana commissioner of insurance is represented by deputy attorneys general Caryn Nieman Szyper, Jefferson S. Garn and Lydia Ann Golten.

The case is the Bail Project Inc. v. Commissioner, Indiana Department of Insurance, 22-2183, in the U.S. Court of Appeals for the Seventh Circuit.

--Editing by Karin Roberts.

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