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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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