Thursday, August 17, 2023

Nonprofit Bail Fund Loses First Amendment Challenge

It always comes down to money': How a nonprofit is changing lives by paying  bail

I have previously jumped on my soap box about attacks on nonprofit bail funds.  Here in Orlando last week, in yet another brazen act of Third Reich-ness, Governor DeSatan "temporarily suspended" another State Attorney for alleged dereliction of duty.  Monique Morrell's head has been in DeSatan's sights ever since she founded the first Conviction Integrity Unit in our local prosecutor's office, and especially after she became the "Soros-backed" elected state attorney. And ever since she implemented bail reform in Orange and Osceola counties.  

It's not just me saying DeSatan's actions are unconstitutional.  A federal district court said so, lamenting, though, that he did not have the authority to reinstate a state official.  That would have to be ordered by a state court.  In a case presumably filed by the state Attorney General.  But the AG is too busy playing footsie with the Devil to care.  

Like a lot of other prosecutors around the country, Morrell took her duty to do criminal justice reform seriously.  Well, two cops got shot downtown last week by a man out on bail.  DeSatan pounced, he's got a campaign to run after all.  He fired her.  He fired -- that's what an "indefinite suspension" is after all -- another state attorney in Tampa months ago for suggesting that he would not prosecute women seeking abortions after Dobbs.  That's when the federal district court found his actions unconstitutional but irremediable except by the state.  The same state that loosed this maniac on the country in the first place.  You can't make this stuff up.   

Anyway, in Chicago this week, the 7th Circuit upheld against a free speech challenge an Indiana law prohibiting nonprofit bail funds from paying a defendant's bail.  

The Bail Project, Inc., is a nonprofit organization that advocates for the abolition of cash bail. At the core of its advocacy, the organization pays cash bail for thousands of individuals across the country. Its aim is to show that conditioning a pretrial defendant's release upon the payment of money is not necessary to secure appearances at future court dates. In response to The Bail Project's efforts in Indiana, the legislature passed, and the governor signed into law, House Enrolled Act 1300. The law requires charitable bail organizations like The Bail Project to register with the State. It also limits for whom such organizations can pay cash bail. The Bail Project sued in federal court and requested a preliminary injunction to enjoin the Commissioner of Indiana's Department of Insurance from enforcing the law. It argued that HEA 1300 (which had not yet gone into effect) would violate its First Amendment right to free speech and its Fourteenth Amendment right to equal protection. The district court declined to issue an injunction after concluding that The Bail Project had not shown a likelihood of success on the merits.

The principal question on appeal is whether the conduct HEA 1300 regulates—the payment of cash bail—is protected by the First Amendment. We hold that it is not. Although The Bail Project pays cash bail for pretrial defendants with the intent to communicate its message and to further its advocacy, a reasonable observer would not understand the conduct itself as communicating any message without additional explanatory speech. Thus, paying cash bail is not inherently expressive conduct, and HEA 1300 does not implicate the First Amendment. We also conclude that the law does not violate the Equal Protection Clause because it is rationally related to the State's legitimate interest in regulating pretrial detention of criminal defendants. Because The Bail Project has not shown a likelihood of success on the merits of either claim, we affirm the district court's denial of a preliminary injunction.

. . . . 

I can hardly fathom the absurdity of it.  By prohibiting a nonprofit bail fund from paying the already high bail for a defendant, the lawmakers implicitly admit that no bail is ever really intended after arrest and before conviction.  Eighth Amendment, much?


darryll k. jones

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Bad idea for non-profit bail fund. It's time has passed.

Posted by: Tom N. | Aug 18, 2023 3:29:13 PM

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