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Supreme Court committee studying alternatives to bail

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The state’s new criminal code reconfigured crimes and punishments but while offenders may face different outcomes, some will still languish in jail prior to trial because they do not have the money needed to be released.

Bail is the primary way defendants get out of jail in Indiana. Usually courts order offenders to either pay cash to the court or use a bail agent to post a surety bond to get released from county detention. Those who do not have the money to pay bail stay behind bars.

During the 2013 and 2014 sessions of the Indiana General Assembly, legislation was introduced that would have made small changes but largely left the current bail system in place. The Indiana Supreme Court has since convened a special committee to examine alternative pretrial release programs which would not end bail in Indiana but could significantly reduce its use.

The Committee to Study Evidence-Based Pretrial Release was established by Indiana Chief Justice Brent Dickson in December 2013. The Supreme Court wants a study and evaluation of the risk-assessment tools that are available to determine when pretrial release is appropriate and under what conditions.

Criminal defense attorney Stephen Dillon makes a strong argument for change with the simple assertion that the state’s current bail system is unfair. Rich defendants can get out of jail before their trial while poor defendants have to remain in custody.

Dillon, chair of the Indiana State Bar Association Criminal Justice Section, is a member of the Supreme Court’s pretrial study committee. Echoing the thinking behind evidence-based forms of pretrial release, he advocates basing the decision to discharge not on money but on whether the defendant is a danger to the public or a flight risk.

Among the objectives the Supreme Court gave the study committee was finding a way to give all accused individuals access to release regardless of their personal wealth. In addition, the court asked the committee to report on avenues to establish a release system that is proportional to the risks the defendant presents; will enable offenders to continue their normal lives and employment as much as possible; and will allow accused persons to receive treatment and rehabilitative services.

The 14-member study committee is made up of judges, prosecutors, defense attorneys, probation officers and state legislators.

Release based on risk

Pretrial release has become a key issue with the implementation of the new criminal code. Committee member State Rep. Jud McMillin, R-Brookville, pointed out the study committee is addressing the concern that many local officials have about jail overcrowding.

The new code aims to keep low-level, non-violent offenders in the county jails rather than place them in the Indiana Department of Correction. Having some alternatives to bail could provide a better way to reduce the inmate population since a significant proportion of people are currently in the local jails because they cannot afford the cash or surety bond, he said.

Both Dillon and McMillin noted the present bail system does not consider an offender’s risk of committing another crime while on pretrial release. Instead, county jails have a bail schedule based on the level of offense. If the accused has the money, the cell door can swing open.

In Kentucky, the process is different.

Within 24 hours of being arrested, every defendant undergoes a risk assessment that largely consists of a state and national criminal background check as well as a brief interview. Then the defendant is ranked as being of low-, moderate- or high-risk, and the pretrial officers make a recommendation to the local judge.

Next, the judge decides the terms of any pretrial release. While in all cases the bench has the discretion to add conditions, generally low-risk offenders are released on recognizance and moderate-risk offenders are also released but monitored. Judges are given complete discretion regarding high-risk offenders.

Bail is still an option, and judges can impose a monetary condition to release. However, the funds are paid directly to the courts.

“Research has shown time and time again that posting money has no bearing on returning to court or risk to the public,” said Tara Klute, general manager of the Kentucky Division of Pretrial Services.

The success of Kentucky’s program is clearly illustrated in the statistics. In fiscal year 2014, a total of 216,760 individuals were arrested in the Bluegrass State. Of the 68 percent who obtained pretrial release, 87 percent appeared for court hearings and 92 percent did not commit another crime while on release.

Convincing all 92 counties

Northwest Indiana’s Porter County has had a supervised pretrial release program for more than 20 years. Defendants are classified as low-, moderate- or high-risk and assessed for whether they need treatment for a substance abuse or mental health issue.

According to Stephen Meyer, chief probation officer at the Porter County Probation Department, the local jail is one of the few in the state that is under capacity. Also, even though Porter County is the ninth-largest county in Indiana, 40 other counties are sending more inmates to the DOC.

Meyer, who is a member of the study committee, said counties are receptive to looking at what can be done better, yet they can be resistant to change. That gives the committee a “daunting task,” he said, of trying to pull all the players together and consider alternatives to bail.

Klute attributes Kentucky’s ability to get all its counties to comply with pretrial release to the Legislature. The Statehouse passed measures outlawing commercial bail bonds in 1976 and mandated judges use pretrial risk assessment reports in 2011.

Getting all 92 counties in Indiana to agree to institute alternatives to bail will be difficult, McMillin acknowledged. As happened in Kentucky, he believes the Indiana General Assembly will have to legislatively address pretrial release.

The committee has previously met twice and plans to meet again in August. No deadline has been set for the committee to submit its report to the Supreme Court.•

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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