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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.