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Dickson: Only judges to decide pretrial release

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In Indiana, many individuals arrested for criminal offenses languish behind bars because they do not have the resources to buy their way out prior to trial.

Whether cash or surety bond, often courts use money as a condition for pretrial release. Consequently, people of limited means may be held in the county jail awaiting trial longer than they would be sentenced to serve if convicted of the crime.

“That’s not fair,” said Indiana Justice Brent Dickson. “We have a presumption of innocence and yet we keep people in jail because they’re not paying money. That’s wrong.”

Dickson Dickson

To provide another option, Dickson, while chief justice, led the Indiana Supreme Court to establish the Committee to Study Evidence-Based Pretrial Release. The group, consisting of judges, legislators, prosecutors, public defenders and probation officers, is tasked with examining and evaluating risk-assessment tools used by courts around the country to determine which defendants to release before trial. At the end of its review, the committee will submit recommendations to the Supreme Court for implementation of the tools.

Dickson formed the study committee, in part, to ensure the judiciary retains its function of making decisions regarding pretrial release. He pointed to attempts in the Legislature to alter the way trial judges handle pretrial release and bail.

Last summer, when the Commission on Courts tried to approve a proposed bill that would have allowed defendants to choose between a surety bond and cash bail, Dickson pushed back. He raised concerns that the measure would limit judges’ ability to release defendants on their own recognizance and to use risk-assessment tools when deciding whom to release and under what conditions.

During the 2014 session of the Indiana General Assembly, two bills concerning bail were introduced in the Senate, but both stalled in committees.

Dickson drew a line between the responsibility of the judiciary and the purview of the Legislature. Surety bonds are a product of the insurance industry, he said, and certainly the Statehouse can regulate the insurance industry.

“But anything having to do with the way the courts use these or anything that might affect the judge’s discretion to decide how best to ensure that someone will return for trial is exclusively a judicial function,” Dickson said. “And we’re trying to help our trial judges responsibly exercise that function.”

Cash or bond

St. Joseph County is one of a handful of counties in Indiana to rarely use surety bonds, primarily requiring defendants to post cash bonds to be released. The money may be subsequently applied to cover any fees, fines or attorney costs, said St. Joseph Circuit Judge Michael Gotsch. He disputed a common contention among bail bond agents that the funds are used as a revenue stream for the court.

sexton Sexton

Gotsch, a member of the study committee, questioned the need for surety bonds. He noted that in the 1800s and 1900s, bail bond agents were necessary because people could not always access their money. But now with ATMs, they can get cash at any time to bail someone out of jail.

Dickson said he does not intend for the study committee to look for ways to abolish the surety bail system in Indiana.

Lee Sexton, president of the Indiana Surety Bail Agents Association, agreed some people who are arrested “truly deserve” to be released on their own recognizance, such as those accused of minor thefts and public intoxication.

However, Sexton asked in all the conversations about pretrial release, where is the concern for the victims of violent crime?

Bail agents, he said, help provide victims some relief by taking responsibility for the individuals arrested for serious crimes like battery, burglary, drug dealing and rape. The agents keep tabs on these offenders and ensure their appearance in court. Agents have to pay the full bail amount for any defendant who fails to appear, giving agents an incentive to find them and bring them back to the jurisdiction to stand trial.

This is done, Sexton said, at no cost to the taxpayers. He charged that pretrial release programs, on the other hand, will pull from public coffers because the state or local governments will be taking over the duties performed by bond agents.

Sexton also said his association would have liked a seat on the study committee. The agents want the opportunity to tell their story.

Dickson said the committee did not need input from the bond agents.

“This is not about surety bonds,” Dickson said. “This is about how judges do things without surety bonds for people who aren’t dangerous.”

Need for an alternative

Risk-assessment tools are touted as providing information to judges about whether an offender will reappear for court dates and whether conditions, like enrollment in a drug counseling program or electronic monitoring, should be a part of the release.

Dickson said the extensive work in evidence-based practices for assessing risk also encouraged him to convene the study committee. The research has shown, he said, communities can save taxpayer dollars and reform defendants when courts employ these proven methods to determine who should be released without bail.

In St. Joseph County, Gotsch sees a need for an alternative.

He pointed to the local jail where defendants who cannot afford bail, including those arrested for minor offenses, can stay in jail for 30 to 90 days before they get to the courtroom. Then, he said, they are usually sentenced to time served for crimes that would have put them in jail for just a few days.

The situation is not unique to northern Indiana. Citing statewide statistics presented to the study committee, Gotsch said 67 percent of individuals in Indiana jails are being held pretrial.

Taking such a long time to adjudicate crimes is the reality. Gotsch conceded courts should look for ways to move faster but the process to prepare and hold a trial takes time.

“I think judges need to look at the whole situation and recognize we’re holding a lot of people pretrial and the state is spending a lot of money to hold them pretrial and it may not be the best solution,” Gotsch said.

Dickson hopes the study committee will offer at least some preliminary recommendations by the end of the year. He wants the group to formulate standards to help trial judges on how to use the risk-assessment tools and possibly develop some guidelines outlining how much weight should be given to risk assessment versus other factors.

“I definitely do not want to inhibit the full discretion of our trial judges,” Dickson said. “But I do want to encourage them to release non-serious arrestees for non-serious crimes whenever possible and to use the risk-assessment tool to help make that decision.”•

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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)

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