Sunday, September 21, 2014

Is Indiana Ready for Bail Bond Reform?

December 20, 2012 by Hon. Gregory J. Donat

Editor’s Note: Res Gestae magazine has also published Judge Donat’s article in the November 2012 issue under the title “I’m Embarrassed.”

The Indiana Constitution provided in Article 1, Section 12: “Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.”

“Without purchase” is an interesting concept. Does it mean that ability to pay will not determine who is, and who is not, in jail? You’d never know it from the way things work in Indiana. Because the ability to post a bail bond completely determines whether a person is held in jail or released. Nationally, according to the federal Bureau of Justice Statistics, sixty percent of inmates in county jails are awaiting disposition of their case and not serving a sentence. They simply cannot afford to post a bail bond. Liberty is purchased by a “bond schedule.” I am at a complete loss on how to reconcile these facts with the Indiana Constitution.

The U.S. Constitution, and every state constitution, has a provision that “excessive bail shall not be required.” The United States Supreme Court has ruled that “excessive” means more than is required to ensure that the individual appear in court when ordered to do so and to ensure public safety. We created bail bonds to insure that the accused would appear at trial and all court proceedings. In more recent times, we added the issue of “public safety” as a legitimate consideration in setting bail. (IC 35-33-8-1) Do courts really consider those issues in setting bail bonds? I think not. We set bonds according to a schedule that is based on the arresting officer’s belief of the class of misdemeanor or felony that will be charged. How can anyone determine if such a bond is excessive? The only way to do that is to examine each individual case. Having the money available to post bond is neither an indicator that the accused will appear in court nor is it a guarantee of public safety. It appears all too often that the wrong people are being held in jail while high–risk offenders are being released because they have the resources available to post bond.

In America, we generally think of bond as an amount of money, but in fact bond is “money or other terms of release” that accomplish the dual goals of court appearance and public safety. The evidence shows that terms individually designated to fit the circumstance of the case are much more effective in meeting those goals. I have asked my friends from the domestic violence field: “Would a victim feel more secure if the perpetrator posted bond or wore a GPS tracking device that would warn the victim if the perpetrator came within 500 feet?” In that circumstance, the terms of release are more effective in securing public safety. Evidence-based practices have demonstrated in every comprehensive study that “terms” of release are vastly superior to “money.” In the federal system, and in many state jurisdictions, Pretrial Service agencies use risk evaluation tools to set and monitor the terms of release.

In the landmark case Stack vs. Boyle, 342 U.S. 1 (1951) the U.S. Supreme Court held: “Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” The Court further ruled that the “standards … are to be applied in each case to each defendant”. The Indiana Court of Appeals decision handed down on September 4, 2012, Tommi Emerson Winn v. State, No. 42A04-1201-CR-49, sets forth a list of possible factual circumstances to be considered in each case.

There is also collateral damage. Locking up a person “presumed to be innocent” can have serious unintended consequences. We think of a suspected criminal as a bad person who is better off locked away. The truth is that many people accused of committing a crime are actually valued by their spouses, children, family, friends, employers, and neighbors. Often, by the time the case is resolved, irreparable damage has been done. Even if the final disposition is “guilty’” it is all too common that the criminal sanction is less than the time already served. I have imposed a sentence of 30 days, only to have the defendant say, “I’ve already got credit for 52 days.” Non-monetary terms of release not only save vast sums of money for incarceration expenses, the practice also affects many other rights:

  • The 6th Amendment right to counsel as a defendant who doesn’t have to post a significant cash bond will be better able to provide a private attorney and to help prepare a defense;
  • The presumption of innocence is diminished when the defendant shows up to court in shackles and jail clothes;
  • Since 93 % of cases are resolved by plea agreement, a person at liberty is in a better position to negotiate while demonstrating normal treatment, employment, stable family life, ability to generate supportive witnesses, and appropriate behavior; and
  • The 14th Amendment right to due process is certainly affected when bond is set without any hearing.

Therefore, the evidence has shown from many aspects that there are a wide range of monetary, legal, and ethical reasons to reconsider our pretrial system.

We are now in an era when we can evaluate data scientifically and determine the factors that indicate those we should release without bail, those who should be detained, and those who should be released under specific terms (such as drug testing or GPS tracking). The federal court system, and many states and communities, use a validated risk assessment to make bond decisions. Indiana has adopted an official “risk assessment tool.” But Indiana courts are very reluctant to abandon the bond schedules. Some judges believe that bond schedules are useful and also generate money to cover court costs and fees. Bonds were never intended to be a revenue-raising measure and one could argue that to do so is unconstitutional.

The American Bar Association, the Council of State Chief Supreme Court Judges, the National Sheriff’s Association, and many other organizations have adopted an official position favoring bail bond reform. Indiana has been very reluctant to address this issue. I am embarrassed that Indiana is ignoring this serious problem. We have been a state that has so often been in the vanguard of enlightened judicial approaches.