The Indiana Lawyer on April 6, 2016 by Marilyn Odendahl
The days of detaining arrestees solely because they cannot afford bail could be coming to an end in Indiana.
A pilot project is getting ready to launch that will test the use and effectiveness of a risk-assessment tool in determining which offenders can be released on their own recognizance. Nine counties have been selected as sites for the pilot, which is an initiative of the Indiana Supreme Court Committee to Study Evidence-Based Pretrial Release.
Allen Superior Judge John Surbeck, chair of the committee, acknowledged the pretrial assessment runs counter to the deeply ingrained practice in the U.S. court system of requiring money before releasing someone before the hearing date. However he and other judges pointed to national studies as well as common sense which show neither bail nor bond guarantees an offender will appear in court.
As Hendricks Superior Judge Robert Freese summed up the situation, “Money means nothing.”Surbeck hesitated to make a sweeping statement that the pilot could lead to the end of bail in Indiana. He emphasized the goal of the project is not to put bail bond agents out of business. Moreover doing away with bonds completely would require an amendment since the Indiana Constitution spells out a right to bail.
As they become ready, the nine counties involved in the pilot — Allen, Bartholomew, Hamilton, Hendricks, Jefferson, Monroe, St. Joseph, Starke and Tipton counties — will start using the Indiana Risk Assessment System, Pretrial Assessment Tool (IRAS-PAT) to evaluate the arrestees, Surbeck said. Given as soon as possible after an arrest, the tool is touted as being able to determine an individual’s risk for failure to appear and for reoffending while on pretrial release.
The counties are waiting the final word as to what data they should be collecting and submitting to the state. Also, Surbeck said, the Supreme Court is considering a proposed rule regarding the assessment of inmates. In particular, the rule would prohibit the prosecution from using anything that was developed or revealed during the assessment.The Indiana Supreme Court declined to comment on the status of the pilot project.
Hamilton Superior Judge Wayne Sturtevant admitted he was slow in accepting this idea of doing away with bail. He was skeptical of the national research but, he said, the more he read and the more he thought about it, the idea began to make sense.
“I believe this is the right way to go,” he said. “I believe this is what we need to do.”
Ending tough decisions
Judges emphasize that money does not equate to innocence. But under the bail system, people at great risk of committing another crime or fleeing are let out largely because they have the ability to pay the court or the bail bond agent.
Moreover, those who pose no risk but sit in jail because they cannot afford bail end up paying a much higher cost. A July 2014 report by the Center on Juvenile and Criminal Justice highlighted how destabilizing pretrial detention can be. Incarceration can translate to individuals losing jobs or homes, defaulting on car payments as well as child support, and losing custody of dependent children along with ties to the community. This upheaval can lead to recidivism.
People held for two or three days before they posted bail were 40 percent likelier to commit a crime, and those held for a month or more were 74 percent likelier to recidivate, according to a 2013 study by the Laura and John Arnold Foundation. In addition, the report found individuals detained before trial were three times likelier to be sentenced to prison and twice as likely to receive a longer prison term.
Judges noted while arrestees are presumed innocent, they are treated as if they are guilty because they cannot post bail.
Allen County Courts had its first IRAS-PAT assessed individual appear in court in mid-March. Hendricks County has been using the tool for some time and has the evaluation down to a system where the probation office will begin the assessment of recent arrestees at 6 a.m. with a report to the judge or magistrate before the 1 p.m. start of initial hearings.
Key to the IRAS-PAT is its objectivity. Freese pointed out the assessment tool is not subjective or open to interpretation but rather asks questions that produce answers that are definite and can be confirmed. He described the assessment as a “name, rank and serial number” test that provides information such as the offender’s address, marital status and whether there are any cases pending or past convictions.
Bartholomew County criminal defense attorney and part-time public defender David Nowak also noted the objectivity of the assessment, saying the results will eliminate the tough decisions attorneys and judges sometimes have to make. In a county overrun by heroin and methamphetamine, the courts will be able to look to the evaluation results rather than having to guess who is an addict and likely to reoffend…….