Prosecutors want pretrial release rule withdrawn

November 2, 2016

More than a month after the Indiana Supreme Court approved a rule that encourages state courts to release low-risk arrestees without bail, Indiana prosecutors are asking the justices to reconsider.

The Indiana Prosecuting Attorneys Council board chairman Dan Murrie issued a statement Oct. 24 requesting the rule be withdrawn until more research can be done.

“After reviewing the language of Criminal Rule 26, The Indiana Prosecuting Attorneys Council has voted unanimously to object to implementing it and requests that the Supreme Court withdraw the Rule until further research has been completed,” Murrie stated on behalf of Indiana’s 91 prosecutors. “We have seen no credible data or research that suggests a systemic pretrial detention ‘problem’ exists in Indiana.”

Murrie declined to provide any additional comments, saying he was not authorized by the board to do so.

Criminal Rule 26, adopted Sept. 7, leaves the discretion to trial judges but encourages courts to release without money or surety bond those arrestees who do not pose a substantial flight risk or danger to the community.

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The rule was based on the recommendations of a special study committee convened by the Supreme Court in December 2013. From the work of the Committee to Study Evidence-Based Pretrial Release, a pilot project was launched during 2016 in nine counties to study the use and effectiveness of risk-assessment evaluation.

Chair of the study committee, Allen Superior Judge John Surbeck Jr., is surprised the prosecutors have taken an official stance against the rule. He cited the studies which have shown that individuals who are detained pretrial are more likely to commit a crime when they are released. He contended that demanding bail is penalizing someone before they are found guilty.

“It makes no sense to keep people in jail solely because they’re poor,” he said.

Following a request for comment, the Supreme Court issued a statement saying, it “has received questions from stakeholders regarding interpretation and implementation of Rule 26 regarding pretrial release. The Court values input and invites prosecutors, public defenders and other partners to submit any questions, feedback or recommendations.”

Indiana is not the first state to examine its use of bail. Colorado, Kentucky and Virginia are among those using risk-assessments tools to determine release.

Also, federal courts in Alabama, Georgia, Mississippi and Missouri have found that keeping people in jail because they cannot pay for their freedom is a violation of their constitutional rights. Noting this emerging trend, Surbeck believes all states will have to eventually comply with these rulings.

“If we don’t adopt our own rule, someone else is going to adopt one for us,” he said.•


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