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Indianapolis Star on 08/26/2018 by Billy Kobin
Nearly two years ago, 11 Indiana counties, including Hamilton and Hendricks, decided to try a different approach to handling those arrested and awaiting trial.
Instead of setting money bail amounts, judges would use risk assessments to decide whether defendants should be held in jail or, more likely, simply be allowed to go home on the promise they would return for their next court date.
The upside? Jails would be less overcrowded with low-risk inmates who had been accused of a crime, but not yet convicted, and, thus, also save the taxpayer cost of incarcerating them.
It was also seen as a more humane way to deal with low-risk offenders who struggle to come up with the cost of bail — a scenario that disproportionately has kept minorities behind bars.
The downside is that potentially dangerous criminals might be set free and commit more crimes before their next court date. That point was argued vehemently by the estimated $2 billion bail bond industry.
And while civil liberties groups largely favor eliminating bail, they do have concerns that risk assessment tools also could be flawed in a way that disproportionately denies the release of minorities.
So, two years later, has it worked out?
Officials in Hamilton and Hendricks counties say yes, that generally the new program has kept low-risk offenders out of jail, while still keeping the high-risk offenders locked up.
“It’s been less about reducing numbers (in jail) than getting people in the right places,” said Hendricks Superior Court Judge Stephenie LeMay-Luken. “People that need to be in the jail are there.”
What the data shows
Available data, while somewhat limited, seems to back up that assertion.
Hamilton County’s pilot program began June 1, 2016, and Hendrick County’s pilot launched in October 2017.
Hamilton County assessed 2,166 defendants in 2017 and placed 1,708 on pretrial supervision, according to figures provided by Stephanie Ruggles, the county’s director of pretrial services.In other words, nearly 79 percent of defendants were released without having to pay bail.
Ruggles said, prior to the pilot program, bail was the primary mechanism used to release offenders, and though statistics were not immediately available, she said the new system has reduced the number of low-risk defendants being held in jail.
Of those who have been released, 91.2 percent made all of their scheduled court appearances. Ruggles said she is “happy with that” figure and that local judicial officials believe failure to appear (FTA) rates have decreased since the pretrial program began.
But it’s not definitive. Hamilton County was not tracking FTA rates prior to the pilot project.
The “Overall Safety Rate,” which measures how many defendants are not charged with new crimes during the pretrial stage, was 89.4 percent.
For released offenders, Hamilton County uses four levels of supervision, while Hendricks County uses three levels. At the lowest level, defendants are released on their own recognizance and expected to show up to their next court date.
The higher levels require offenders to meet with pretrial officers as often as every other month or up to twice each month while awaiting trial.
Released defendants receive email, phone call and text message reminders about upcoming court dates, which officials said also help reduce FTA’s.
In Hendricks County, 70 defendants have been released under “basic supervision” — the lowest level — since October 2017, said Nicholas Rice, the county’s pretrial services officer. Of those, two defendants failed to appear for court dates and one defendant was arrested for a new offense.
Under the highest level of “enhanced supervision,” Rice said 132 defendants have been released since January, with three FTA’s and 10 new arrests occurring.
But, again, the results are positive: FTA rates for all criminal cases in Hendricks County — including pretrial supervision cases — declined from 19 percent in April 2017 to 10 percent in July 2018, according to Catherine Haines, the county’s court administrator.
How assessment works
The state pilot program began in 2016 after the Indiana Supreme Court issued Criminal Rule 26, which encouraged state courts to release low-risk offenders without bail.
The nine other counties that volunteered for the pilot program are: Allen, Bartholomew, Grant, Jefferson, Monroe, Porter, St. Joseph, Starke and Tipton.
But it’s likely that all Indiana counties will follow suit. Gov. Eric Holcomb signed a separate bill in 2017 that asks all Indiana courts to adopt evidence-based risk assessment rules by 2020.
The 11 counties began their pilot programs at different points throughout 2016 and 2017, with variations in how each county’s program operates.
Judges still have the latitude to set bail or hold offenders if they are deemed a flight risk or danger to themselves or others.
To assess offenders, each pilot county utilizes the Indiana Risk Assessment System Pretrial Assessment Tool (IRAS-PAT). Counties may use additional assessment tools.
Trained staff administer the IRAS-PAT during a brief face-to-face interview with an offender in jail following an arrest. The assessment includes seven questions on criminal history, employment, housing stability and drug use.
Staff also check out-of-state criminal records.
The offender’s answers are verified and scored, with the final score meant to predict the likelihood the offender will fail to appear in court and reoffend while on release. Offenders are classified as low, moderate or high risk.
In Hamilton County, Ruggles said 50.3 percent of defendants in 2017 were deemed low risk, 39.8 percent were moderate risk and 9.9 percent were high risk.
An initial hearing is held the same day or the next business day after the arrest, with defense attorneys made available for offenders. Information from the completed IRAS-PAT is considered during the hearing.
Depending on the seriousness of the offense and assessed risk, judges decide if offenders are released on supervision or held in jail with a bail amount until their next trial.
Hamilton County judges agreed with the no-bail supervision recommendation in 30 percent of the cases. In another 61 percent of the cases the judge agreed to no bail but ordered stronger supervision than was recommended.
“There is no evidence that if I post a cash bond that I’m going to show up in court and not be a threat to the public safety of my community,” LeMay-Luken said.
National movement growing
Pretrial risk assessment tools have existed for more than 50 years, but their usage has come into the national spotlight more recently as the movement to end cash bail gains steam.
Several court rulings around the country have upheld efforts to dismantle the bail system. Red and blue states alike have approved bail reforms.
Kathryn Dolan, chief public information officer for the Indiana Supreme Court, said the most recent data showed 11,926 people were in Indiana jails on “pretrial” status in September 2017. That represented 56 percent of the state’s total jail population.
The pretrial assessments are meant to lower that percentage.
National studies on risk assessment tools have reached mixed conclusions. Some studies have shown that standardized risk assessment tools can more accurately predict outcomes for offenders when compared with unstructured assessments or a reliance on judgement.
Studies also have shown detaining low- and moderate-risk defendants in jail for just two to three days increased the chances those defendants reoffend in the future.
However, a paper in the “Washington Law Review” this year said pretrial risk assessment instruments, as they are currently used, “cannot safely be assumed to advance reformist goals of reducing incarceration and enhancing the bail system’s fairness.”
Bail industry pushes back
Several Indiana bail bondsmen told IndyStar pretrial risk assessment programs may work fine for minor crimes but otherwise cost taxpayers more in the long run.
The bondsmen said they save taxpayer dollars by ensuring their clients show up to court and that law enforcement do not have to spend resources finding offenders.
“I make 1,500 calls a week just to make sure my clients are still in Indiana and going to court,” said Anthony DeLaughter, co-owner of DeLaughter Bail Bonds, which operates in 55 Indiana counties.
Tyce Carlson, owner of Uptown Bail Bonds in Noblesville, said business is “the worst it’s ever been” for bail bondsmen, with his business down about 80 percent since the pretrial risk assessment program began in Hamilton County.
“This is taking (bail bondsmen’s) livelihood away from them,” Carlson said. “If criminals know they can do a crime and get out within hours without paying any money, they are going to commit crimes.”
But LeMay-Luken, the Hendricks County judge, said the opioid crisis, not pretrial release, is driving any crime increases.
Staff from Hamilton and Hendricks counties said sheriffs, prosecutors, defense attorneys, judges, counselors and mental health experts are among those present in discussions on how to improve the pretrial system.
“The communication between all local stakeholders has increased,” Ruggles said. “It’s really helped close gaps within our local criminal justice system.”
Still, some past cases highlight how pretrial release does not always function perfectly.
In April 2017, an 18-year-old Indianapolis man was arrested in connection with multiple home break-ins in Fishers. Derrick Johnson Jr. was released from jail in Hamilton County as part of the pretrial release program and then arrested in Marion County in May and June for a slew of offenses.
Instead of being returned to Hamilton County for violating his release conditions, Johnson was released on bail on two occasions from Marion County Jail. He failed to appear for his Hamilton and Marion County hearings at the start of June and eventually was fatally shot by a homeowner during an alleged Castleton-area home invasion on June 6, 2017.
Ruggles said Hamilton County failed to receive notice on Johnson’s Marion County arrests due to a mistake in how the cases were linked in the state’s Odyssey case management system.
There also is the lingering concern that, while the no-bail system is better, the risk assessment tools may not root out embedded racism.
In July, a national coalition of more than 100 civil rights, digital justice and community organizations released a statement highlighting their concerns with predictive risk assessment tools that contribute to “racial disparities across the criminal justice system.”
More specifically, there is concern that questions on prior arrests and housing stability can still disproportionately affect the “risk scores” of poor and minority defendants who advocates say have historically been unfairly treated by the criminal justice system.
Jeff Clayton, executive director of the American Bail Coalition, said the use of predictive tests to assess and place people into risk groups is troubling.
“We just don’t think that’s good for individual liberties,” Clayton said.
That said, Hamilton Superior Court Judge Gail Bardach said the pilot counties are not solely relying on the IRAS-PAT to make release decisions. The collection of data during the pilot program is also helping counties evaluate the effectiveness of risk assessment tools, Bardach added.
“There is a whole lot more information that goes into (release) recommendations than ever goes into someone who pays a bondsman,” Bardach said.
The 11 pilot counties are working with IU Public Policy Institute researchers to validate the IRAS-PAT and collect data on how counties are assessing offenders.
The validation process began in 2017 and studies how accurately the IRAS-PAT predicts failures to appear and new offenses during pretrial, said Eric Grommon, an associate professor in IUPUI’s School of Public and Environmental Affairs involved in the validation study.
Grommon said the validation process is ongoing, making it too early to definitively say if the IRAS-PAT is effective and not discriminating against offenders based, for example, on racial differences.
A statewide pretrial work group also is discussing ways to improve the program. Grant Circuit Court Judge Mark Spitzer, who chairs the work group, said early data is “very promising” and counties are releasing individuals without money bail more often.
“There doesn’t seem to be a significant negative impact on public safety,” Spitzer said, adding funding concerns still exist.
Pilot counties receive funding from county sources as well as the Indiana Department of Correction and Indiana Supreme Court.
Hamilton County’s pretrial services budget is just under $570,000 per year, Ruggles said, which primarily covers costs for Ruggles, five pretrial officers and defense attorneys provided at initial hearings.
Hendricks County budgets approximately $75,000 to cover Rice’s position. LeMay-Luken said more funding would allow the county to assess offenders over weekends versus holding them in jail.
The National Institute of Corrections and Indiana Office of Court Services have assisted the counties in implementing their pilot programs.
Nine other counties, including Marion County, have contacted the state for help on developing pretrial assessment programs, said Dolan, the Indiana Supreme Court spokeswoman.
Officials said while not they are not perfect, pretrial risk assessments are helping ensure ability to pay does not determine who gets out of jail.
“It’s working well, and to my knowledge, judges are favorably impressed with the program,” Bardach said. “We are keeping the right people in jail.”