The purpose of bail is to assure that a defendant will appear for court hearings as well as trying to assure public safety all the while balancing the concept that a person is innocent until proven guilty. In many circumstances, once an individual was arrested, they would have to remain in custody unless they were able to pay a certain amount of money in exchange for their release. This concept obviously presents a fairness issue as those who could afford to be released could, whereas somebody would couldn’t would have to sit in jail for the same alleged crime.
To combat this fairness issue as well as to attempt to make the process more efficient, in 2013 the Indiana Supreme Court created a committee to study evidence-based pre-trial release assessments and the resulting impact such assessments may have on public safety, reduced recidivism, reduced taxpayer costs, enhance reliability and fairness of criminal justice results. The committee then recommended that the Supreme Court adopt a rule which would require Indiana trial courts to use evidence-based risk assessments to determine pre-trial release decisions. In the Order which adopts Indiana Criminal Rule 26, it provides that the committee found that the prompt release of those who are arrested but don’t pose a risk to the public relates to reduced recidivism and eliminates unnecessary expenses resulting from over-utilization of jail resources. Furthermore, they determined that improvement to Indiana’s pre-trial release assessment would:
- Encourage and empower trial judges to release arrestees earlier;
- Reduce pre-trial detention expense for local jails and enable many arrestees to return to their jobs and provide support for their families;
- Eliminate the unfair and often protracted incarceration of poor people who don’t have the resources to pay bail;
- Enhance the reliability of guilty pleas; and
- Realize the benefits of reduced recidivism and enhanced public safety.
Pursuant to the Ordered filed on September 7, 2016, Criminal Rule 26 was adopted and provides the following:
- A) If an arrestee does not present a substantial risk of flight or danger to themselves or others, the court should release the arrestee without money bail or surety subject to such restrictions and conditions as determined by the court except when:
- (a) The arrestee is charged with murder or treason.
- (b) The arrestee is on pre-trial release not related to the incident that is the basis for the present arrest.
- (c) The arrestee is on probation, parole or other community supervision.
- B) In determining whether an arrestee presents a substantial risk of flight or danger to self or other persons or to the public, the court should utilize the results of an evidence-based risk assessment approved by the Indiana Office of Court Services, and such other information as the court finds relevant. The court is not required to administer an assessment prior to releasing an arrestee if administering the assessment will delay the arrestee’s release
- C) If the court determines that an arrestee is to be held subject to money bail, the court is authorized to determine the amount of such bail and whether such bail may be satisfied by surety bond and/or cash deposit. The court may set and accept a partial cash payment of the bail upon such conditions as the court may establish including the arrestee’s agreement that all court costs, fees, and expenses associated with the proceeding shall be paid from said partial payment. If the court authorizes the acceptance of a cash partial payment to satisfy bail, the court shall first secure the arrestee’s agreement that, in the event of failure to appear as scheduled, the arrestee shall forfeit the deposit and must also pay such additional amounts as to satisfy the full amount of bail plus associated court costs, fees, and expenses.
- D) Statements by Arrestee<:
- Prohibited Uses: Evidence of an arrestee’s statements and evidence derived from those statements made for use in preparing an authorized evidence-based risk assessment tool are not admissible against the arrestee in any civil or criminal proceeding.
- Exceptions: The court may admit such statements:
- (a) – in a pretrial proceeding involving the arrestee; or
- (b) – in any proceeding in which another statement made in preparing an authorized evidence-based risk assessment tool has been introduced, if in fairness the statements ought to be considered together.
- No statements made for these purposes may be used in any other court except in a pretrial proceeding.
This rule took only took effect, in its entirety, on September 7, 2016 in 9 pilot counties which included: Allen, Bartholomew, Hamilton, Hendricks, Jefferson, Monroe, St. Joseph, Starke, and Tipton. On that same date, Sections C and D became effective in all courts. As for Sections A and B, they are scheduled to become effective in all courts on January 1, 2020.
As the pretrial release program concept is still relatively new and the rollout process is still a couple years from being complete, there are inevitably going to be some issues and questions that arise for individuals new to the pretrial release program requirements. If you are somebody you know has been charged with a crime or has questions about a pre-trial release program, contact the experiences criminal defense attorneys at Banks & Brower, LLC. We are available at all times by emailing info@banksbrower.com or calling us at (317) 870-0019.