Northwest Times on 4/2/18 by Dan Carden
INDIANAPOLIS — Criminal defendants who post a cash bond to be released from jail before trial might not get that money back — even when they show up for trial — if a creditor of any kind obtains a civil court order to garnish the bond.
In a case of first impression, the Indiana Supreme Court ruled in a 3-2 decision that not only are county clerks subject to garnishment proceedings, but state law does not prohibit clerks from transferring bond funds to a lien-holding creditor once the bond no longer is required by the criminal court.
Justice Geoffrey Slaughter, a Crown Point native writing for the majority, said defendants agree upon posting bond that all or part of those funds may be used to pay for the services of a public defender, as well as any fines, court costs, fees and restitution.
Likewise, Slaughter said under Indiana law if a criminal case spurs a parallel civil lawsuit, money from a released criminal bond may be held to pay any judgment in that case.
But, he emphasized, those are not the only circumstances in which a bond may be garnished.
He said if a third party has a legitimate claim to the money, such as a creditor holding a civil judgment, the clerk is required upon request of the creditor to pay the money to the creditor before returning any remainder to the defendant.
“The Legislature has not limited the extent to which a civil court may garnish bail proceeds to satisfy a civil judgment, and we decline to impose any such limits,” Slaughter said.
Justice Steven David and Chief Justice Loretta Rush, a former Munster resident, dissented from the court’s ruling on the grounds that bail bonds are different than other funds held by county clerks.
David writes that because the bail statutes are criminal in nature they must be construed strictly. As such, the few specific purposes for which the law says bond funds may be garnished are all that are allowed.
“Since the bail bond statutes expressly include not one, but several instances when funds need not go to the defendant, we can infer that the Legislature intended no others,” David said. “Today’s decision judicially grafts language onto our bail bond statutes.”
He said Indiana would be wise to follow Illinois in holding that “bail bonds are subject to neither attachment nor garnishment by private persons” without express statutory authority.
“Such an approach aligns with one of the primary purposes of bail bonds — securing the defendant’s presence at hearings — which I’m afraid may be undermined when a defendant realizes he will not recover his bail bond money, despite complying with the terms of his bond,” David said.
“It also guards against the undue delay, excess litigation and collision between judicial tribunals that is caused when unrestricted garnishment of bail bonds is allowed.”
The General Assembly potentially could clarify bail garnishment law at its May special session. But it’s more likely that any legislative remedy won’t be enacted until at least next year.