Dustin Houchin: Providing a furlough from jail is tradition, not state law

Much of what goes on in courtrooms is based on tradition and folklore rather than the text of the law. Take the furlough as an example.

Criminal defendants routinely ask for furloughs to attend things like funerals for family members, medical treatments, or to get their affairs in order before returning to jail to serve a sentence.

There is no such thing as a furlough in Indiana statutory law, however. The Indiana criminal code contains no reference to a furlough. Title 35, where most criminal procedure is codified, does not contain the word furlough.

Neither does Title 11, the section of the code that governs the Indiana Department of Correction.

Yet, furloughs are often granted, either by judges or by prison or jail administrators. If a furlough is not based in statutory law, then what is it and where does it come from?

The word furlough derives from the Dutch term “verlof,” with the prefix “ver” meaning away and “lof” meaning leave. It was used in the Dutch military to denote temporary leave for soldiers.

The English military adopted both the anglicized spelling, furlough, and the practice in the seventeenth century. The earliest recorded use of the word in English dates to 1625.

Between then and the eighteenth century, the practice of furloughs migrated from English armies to the Anglo-Saxon criminal justice system. During that time, most prisoners were not released, however. When they were, it was typically to perform military duty or as labor for public works projects.

It wasn’t until the nineteenth century that furloughs came to be viewed as rehabilitative tools in England and later America.

The progressive era of 1920s’ America played a role in moving the furlough from satisfying labor needs of the state to being viewed as rehabilitative. Some U.S. states began experimenting with offering inmate furloughs to maintain family ties, attend funerals,or seek employment.

The furlough as rehab gained popularity in the U.S. between the 1920s through the 1970s. Then a guy named Willie Horton came along.

The 1988 U.S. presidential election between George H. W. Bush and Michael Dukakis prominently featured furloughs. Dukakis, as the governor of Massachusetts, oversaw a prison furlough program that allowed the release of inmates, including Willie Horton.

Horton was in prison for murder when he was approved for furlough. While out, Horton committed a rape and armed robbery. The Bush campaign made powerful use of this incident with provocative television ads blaming Dukakis’s soft-on-crime policies.

Bush won the election, and the use of furloughs decreased over the next decades in the United States.

Though furlough policies are not as liberal as they were prior to the late 1980s, furloughs are still common.

As a judge, I get requests all the time. I don’t grant them, however, because there is no basis in Indiana statutes for a furlough.

I’m not being hard-hearted or nitpicky, here. Rather, I’m trying to move the criminal justice system, or at least my own little piece of it, away from operating on tradition and folklore and more toward operating according to the law as duly enacted by the people’s representatives in the Indiana General Assembly.

That does not mean people in Washington County, Indiana, are never granted temporary leave from incarceration. When we do it here, though, it is done through the bail process.

The Indiana bail statutes are sufficiently flexible to allow judges to release defendants on recognizance for a limited time or for release on intermittent bond. You might say that sounds a lot like a furlough. So, what’s the difference?

Indiana Appellate Courts and the Indiana Supreme Court effectively treat furloughs as bail determinations in their opinions. I believe there is an important difference, though.

Words matter in the law. There are proscribed factors and conditions and burdens of proof in the bail statutes. There are no such things with the fabled furlough.

The vagueness of furloughs is a breeding ground for misunderstanding and litigation and relies too much on the idiosyncratic notions of individual judges. If we use the bail statutes, we are much more likely to have a meeting of the minds for what is expected when an inmate is temporarily released.

So, I suggest that we take a furlough from furloughs. We should verlof the term. We should practice law less by tradition and folklore and start adhering more closely to the textual sources of the law.•

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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.