It’s been seven years since the Indiana Supreme Court issued its order adopting Criminal Rule 26, a mandate that set out to improve pretrial release practices across the state.
Adopted in 2016 and effective statewide in 2020, the rule provides that an arrestee should be released pretrial without bail or surety unless the arrestee is charged with murder or treason, is on pretrial release for an unrelated incident, or is on probation, parole or other community supervision.
Initially piloted in 11 counties, the rule is now three years into being effective across all 92 counties. In that time, about 50 counties have either achieved certification of a pretrial agency or are working toward certification, according to Mary Kay Hudson, executive director at the Indiana Office of Court Services.
Even if a county is not certified under the state’s program, Hudson said they may still have adopted some of the pretrial services and practices used by certified counties.
According to the Office of Court Services, Indiana’s pretrial services program “strives to achieve the ‘3 M’s’ — maximizing public safety, maximizing court appearance, and maximizing pretrial release.”
Hudson said the office is working through the details of collecting information regarding appearance and re-arrest rates, outcomes, and the effectiveness of pretrial practices in improving public safety.
That information, once gathered, will help determine the effectiveness of pretrial services programs.
“We’re just not quite there yet,” Hudson said.
The road to CR 26 began when the Indiana Supreme Court authorized the development of a pretrial release pilot project in collaboration with Indiana’s Evidence Based Decision Making Initiative.
The pilot began in 2016, and the high court adopted CR 26 that same year with the goal of improving pretrial practices across the state to promote fairness and safety.
That rule was intended to improve pretrial practices in Indiana by encouraging trial judges to engage in evidence-based decision making at the pretrial stage.
Indiana uses a series of tools to assess criminal offenders under supervision and determine their risk of reoffending.
Indiana Chief Justice Loretta Rush has promoted the state’s pretrial and criminal justice reform efforts in her last several State of the Judiciary addresses, including the one she delivered in 2020.
In that speech, Rush said that lower-risk offenders should be released without having to post bail.
“Our courts should make use of all available information, including evidence-based risk assessments, to ensure that fairness prevails for all Hoosiers, regardless of wealth, geography, race or gender,” Rush said.
The chief justice returned to the topic in her address the following year, which was delievered in the midst of the COVID-19 pandemic.
“Never has the hard work of pretrial reform been more important than this past year,” Rush said in 2021, adding that evidence-based risk assessment “does not eliminate the bail system.”
“This process allows courts to have more information and to identify candidates for collaborative justice models and get them to treatment — rather than simply jailing them — and allows those individuals to continue their employment, maintain housing, and support their families,” the chief said.
While statewide data on the effectiveness of CR 26 is still in the works, some county-level results are beginning to emerge.
In Elkhart County — which has a certified pretrial release program and has created a new pretrial services agency — the county has been tracking data for the last two years on what percentage of people in pretrial detention showed up for their hearings and how often they were rearrested for new crimes.
According to Elkhart County Prosecutor Vicki Becker, the county is doing well in terms of people showing up for their court appearances and rearrest rates.
For example, appearance rates in the county from January through June 2023 hit 89% for high-risk offenders, 96% for moderate-risk offenders and 100% for low-risk offenders.
As for rearrest rates during the same time period in the county, the percentage of people who had not been rearrested or charged with a crime was 75% for high-risk offenders, 87.5% for moderate-risk offenders and 80% for low-
Elkhart County’s program only deals with Level 6 felony defendants, Becker noted.
“It takes a lot of time and effort to do these interviews and assessments and get the information to the courts,” she said, adding, “You do the best you can with what you have to work with.”
Having data on pretrial release programs is valuable to judicial officers as they decide on whether to grant bail, issue a protection order or make other decisions, Becker said.
But she added that it’s only one tool, as so many factors go into an individual’s risk profile.
According to Hudson of the Office of Court Services, the state is encouraging counties to get access to pretrial services training and grant funding.
The state has also been working with counties on the certification process and how to implement pretrial services.
Of the counties that have gone through the certification process, Hudson said those counties generally seem to appreciate the assistance provided by the state.
“It really is a supportive process,” she said, “and we’re very proud to be able to offer tools to do it.”•