The Indiana Lawyer on 10/04/2019 by Olivia Covington
Across Indiana, 44 local jails are currently at capacity. But if half of all pretrial detainees were released, that number would fall to 11.
State Rep. Greg Steuerwald presented that statistic Friday during the opening session of the Indiana Pretrial Summit. Interdisciplinary teams from all 92 counties gathered in Indianapolis to learn about pretrial best practices ahead of the Jan. 1 effective date of Criminal Rule 26, which will officially implement pretrial reform efforts.
Steuerwald acknowledged that releasing half of Indiana’s pretrial detainees is not a simple task. Even so, he used the statistic to demonstrate the benefits he sees in Indiana’s recent efforts to release low-level, low-risk offenders.
Those efforts have focused on a move away from following a traditional bond schedule and toward using evidence-based assessments to determine if a defendant is eligible for pretrial release. Eleven counties have been part of a pilot project to develop pretrial release programs in their jurisdictions.
Monroe Circuit Judge Mary Ellen Diekhoff, who has been part of the pilot program, used a sweet example to share her thoughts on the effectiveness of evidence-based pretrial decisions.
Across the Indiana Convention Center ballroom filled with hundreds of attendees, 100 Grand candy bars were randomly distributed. Those with candy bars at their seats were told they could leave the room, but everyone else had to stay.
“That is how we have done bail for a long time in this country,” Diekhoff said. “If you had the money, you could bail. Did we know anything about you? No. … Those of you who did not have money,” she continued, “we didn’t know anything about you, either. But you stayed in.”
Diekhoff championed evidence-based assessments as enabling judges to make informed decisions about which defenders could successfully be released pretrial. The assessments aren’t a controlling factor that take away judicial discretion, she said, but instead are tools that help courts better predict which defendants are at risk of failing to appear or committing a new crime, the two main factors considered in pretrial release decisions.
Indiana’s most commonly used assessment is the Indiana Risk Assessment System – Pretrial Assessment Tool. Brad Ray, the director of the Center for Behavioral Health and Justice at Wayne State University, said effective use of the IRAS-PAT depends on judicial stakeholders understanding its purpose.
The tool isn’t meant to predict criminal thinking or global risk, Ray told the summit. Instead, it’s designed to predict a defendant’s risk of failing to appear or committing another crime if they are released pretrial.
“Public safety is and will continue to be our first concern,” Indiana Chief Justice Loretta Rush told the crowd, addressing concerns that have been raised during the pretrial reform process. Indeed, St. Joseph County Prosecutor Ken Cotter said when his county began the pilot, he “thought the sky was going to fall.”
Though it’s been a difficult process at times, Cotter said he now “grudgingly but forcefully” supports the use of evidence-based assessments. One benefit he’s seen has been the ability to keep a dangerous person suspected of only a “small crime” — and thus subject to a lower bond — in jail despite their monetary ability to bail out.
“It really comes down to knowledge,” Cotter said, describing the information gleaned from pretrial assessments.
Grant Circuit Judge Mark Spitzer said Grant County agreed early on to serve as a resource for other counties developing pretrial release programs. He said Grant County’s approach has been to view pretrial assessments in light of the “Three Ms”: maximize release, maximize public safety and maximize court appearances.
In so doing, Spitzer said Grant County has begun holding “meaningful first hearings” that involve both the prosecution and defense lawyers engaging with the court and sharing information to determine if a defendant is eligible for pretrial release and/or should be diverted into intervention or treatment programs. These hearings are intended to be a departure from traditional initial hearings where, Spitzer said, sometimes no lawyer was present at all.
Another element Spitzer urged attendees to consider was pretrial release conditions. Emphasizing that “pretrial is not probation,” he said defendants should be supervised only to the level necessary to ensure they appear in court and don’t commit a new offense. That supervision could be as basic as a text reminder to appear in court, he said.
A key theme from all speakers during the opening session was the need for data to assess the effectiveness of pretrial release programs. In Monroe County, Ray said the use of the IRAS-PAT has shown to be moderately to strongly predictive: 8.4% percent of low-risk defendants violated pretrial release terms, while 33% of moderate-risk and 52.5% of high-risk defendants did the same.
Speaking with reporters before the summit began, Spitzer said in Grant County, initial data showed that 0% of low-risk pretrial defendants had a failure. That number will likely change, but the judge still believes the initial results point toward the assessments being effective.
Other stakeholders, including prosecutors and public defenders, attended Friday’s summit. Bernice Corley, executive director of the Indiana Public Defender Council, has previously raised concerns about the possibility of bias in pretrial assessments.
Though no tool is perfect, Corley told reporters she thinks Indiana’s pretrial reform efforts are moving the state toward a fairer system. The key, she said, is to implement that system with fidelity.
“All the stakeholders have to be at the table, public defenders have to be at initial hearings, and they have to be prepared to advocate for the accused that they’re serving,” Corley said.
Though opinions about CR 26 and its related reform efforts are generally positive, concerns linger about counties having enough funding and resources, including personnel, to complete assessments and connect defendants with necessary services. Pilot counties have been provided with grant funding, and Rush told attendees that pretrial reform leaders are continuing to look for other funding options to assist counties with the transition.
The speakers praised the interdisciplinary approach that has been taken to pretrial reform, with Steuerwald saying representatives from all three branches of government have been actively involved.
“Without that cooperation, I’m not sure it would’ve been done,” he said.
Summit attendees were scheduled to attend breakout sessions and a working lunch throughout the day on Friday.