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The bail reform movement is dying, but it is not yet dead.
Some in Indiana nurse a flicker of hope that the movement, persisting now for over a decade, will not only continue here, but will be expanded upon.
The Indiana General Assembly’s Interim Bail and Release Commission is currently considering proposals for modifying Indiana’s bail process to include preventive detention.
The adoption of preventive detention and the forthright rejection of cashless bail is an opportunity to put a definitive end to the bail reform movement here in our state.
The bail reform movement took hold in Indiana after 2012 when the Obama Administration’s Department of Justice, run by then-Attorney General Eric Holder, decided bail reform was a winning political and policy strategy. They sought out state level judiciaries as prime targets for implementing bail reform because they could bypass the cumbersome legislative process, especially in red states.
Attorney General Holder sent a letter to every “judicial actor” in the country urging them to implement bail reform by court rule.
The attorney general’s letter offered several arguments in favor of bail reform. The Indiana Court system, and eventually the Indiana General Assembly, responded favorably to the Obama administration’s efforts, and some bail reform was implemented here.
The Obama DOJ’s arguments, though, lack solid factual and legal grounding, and a decade-plus later we have fresh evidence of the dangerousness of the policies they inspired.
Bail reformers argue that poor souls are languishing in Indiana jails just because they are unable to afford cash bail. There is simply no evidence to support this purely sentimental appeal.
It also suggests that somehow Indiana judges are required to impose cash bail terms. They are not.
Under Indiana statutes, even before Indiana’s bail reform, judges have full discretion to release defendants without a cash term. There was and is no “reform” needed to relieve this imagined oppression.
In addition to unsound sentimental arguments, the legal arguments made by bail reformers also fail under scrutiny.
They argue the Constitution’s equal protection clause and the presumption of innocence require cashless
bail considerations.
These are misstatements of the law. There is no U.S. constitutional right to bail, so there is no right to be unequally applied under equal protection analysis.
Similarly, the presumption of innocence does not apply to bail. Multiple U.S. Supreme Court cases have affirmed that the presumption of innocence is an analytical tool for trial with no application pre-trial.
While Indiana cases are muddled on this point, recent cases instruct that Indiana follows federal analysis.
While relying on weak assertions, cashless bail is also dangerous. Recent studies show that bail reform is implicated in rising crime in Chicago. (See the report from Pau Cassell and Richard Fowles, “Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois.”)
Violent crime tripled in California after bail reform, according to one study, the Yolo County Emergency Bail Analysis.
Following the cashless bail movement, the U.S. has experienced a 25% decrease in the number of people imprisoned, a 15% decline in the number of people held in jail and a 26% decline in the number of arrests effectuated by law enforcement officers.
This would be a good thing, except it has been accompanied by an unprecedented surge in violent crime.
This dangerousness arises because the typical cashless bail policy mandates the release of offenders arrested on all but the most violent offenses.
Release is based on the type of offense, not individually tailored to the danger the individual poses to the community.
As a discrete example, the man that killed Iryna Zrutska on a train in the recent, high-profile Charlotte, North Carolina, case had just been released on cashless bail for the offense of misusing 911.
The man was clearly dangerous, but the bail law encouraged his release, a defect the North Carolina General Assembly quickly remedied. Similarly, New York and California have lately repealed much of their cashless bail regimes in response to public outcry over dangerousness.
Cashless bail and bail reform is a political movement masquerading as a policy decision designed to fix a non-existent problem. In its success, it has made our communities less safe.
The Indiana Legislature has an opportunity to put a definitive end to the dangerous bail reform movement in our state that started after the 2012 Obama Administration’s call to action.
The Interim Bail and Release Commission can and should facilitate this by recommending the adoption of preventive detention and affirmatively rejecting bail reform and cashless bail policies.•
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Dustin Houchin is the Washington County Superior Court judge in Salem. He also is the publisher of Judex, a Substack newsletter on conservative judicial issues at judex.substack.com. Opinions expressed are those of the author.
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