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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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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