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Indiana prosecutors come out against 'Rule 26' bail changes for low-risk arrestees

Posted at 4:35 PM, Oct 24, 2016

INDIANAPOLIS -- Before it's even taken its first steps, prosecutors are asking the Indiana Supreme Court to kill a proposed bail reform program that would see more low-risk arrestees released without bond.

A trial run of the program – formally adopted last month as Criminal Rule 26 – has already gone into effect in nine pilot counties, including Hamilton, Hendricks and Bartholomew counties.

The effect of Rule 26 would be to have courts release arrestees without bail as long as a judge determines they "do not present a substantial risk of flight or danger to themselves or others." That decision would rely on "evidence-based risk assessments" of arrestees.

The rule would not affect those charged with murder or treason, or who are already on probation or out on bail in connection with another case.

The Indiana Supreme Court adopted the rule last month at the advisement of a study committee of trial judges, probation officers, prosecutors, public defenders and other stakeholders.

On Monday, the Indiana Prosecuting Attorneys Council released a brief statement asking the Supreme Court to rescind Rule 26:

“After reviewing the language of Criminal Rule 26, The Indiana Prosecuting Attorney’s Council has voted unanimously to object to implementing it and requests that the Supreme Court withdraw the Rule until further research has been completed.  We have seen no credible data or research that suggests a systemic pretrial detention 'problem' exists in Indiana.”

A spokesman for the group declined to offer further details.

Among those on the Rule 26 study committee was Indiana Public Defender Council Executive Director Larry Landis, who says he can't understand the Indiana Prosecuting Attorneys Council's sudden opposition to the program.

"Quite frankly, I was surprised, because prosecutors were involved in the three-year process of the Supreme Court committee that drafted the rule," Landis said.

Landis argues that the rule is necessary to protect poor individuals from being held in jail because they can't afford bail.

"If a person is not at risk of flight, not a danger to the community, and presumed innocent, why shouldn't they be released before trial without money bail?" Landis said. "We think poor people should not be held in jail to await trial just because they're poor."

He also said that similar programs in Kentucky Colorado and Wisconsin have shown positive results.

"The data from a number of other jurisdictions shows that if you detain people unnecessarily and you keep them in jail, you actually increase recidivism," Landis said. "If you take somebody who's got a family and a house, a blue collar wage earner, if you hold them in jail for six months, they're going to lose their job, their house. And sometimes you hold them for six-to-nine months. And you introduce them to a new peer group who are real criminals. And not surprisingly, they get worse."

In Indianapolis, Deputy Prosecuting Attorney Ryan Mears, who supervises the Marion County Prosecutors Office's major felony division, says the rule likely wouldn't have a positive impact on the jail's overcrowding issues – and might even exacerbate it.

"This is going to drastically slow down the procedure of people requesting bail," he said.

MORE | Marion, Hamilton county jails dealing with overcrowding | Sheriff: Jail II 'infested' with drugs, money & phones

Currently, Mears said, arrestees in Marion County are already routinely released on their own recognizance if a judge determines they aren't a flight risk and aren't a threat to the community.

Mears called Rule 26 an "unfunded mandate" that would likely represent a "significant financial hardship on the criminal justice system as a whole."

The current system, according to Mears, has most arrestees before a judge for a bail hearing within three-to-seven days of their arrest. At that hearing, arrestees are given the opportunity to call witnesses to testify about where they would stay and how they would avoid further arrests. Alleged victims are also able to testify about why they believe the arrestee should stay in jail.

Mears says he worries Rule 26 would lead to prosecutors and judges having to decide on bail based on "nothing more than the arrestee's own words" because of insufficient time to investigate them.

"This is only going to exacerbate the problem," Mears said.

Despite his skepticism, Mears says he and the Marion County Prosecutors Office mostly want to see more time and research go into the program before it's implemented statewide. Landis agrees.

"I would say, let's let the pilot projects start and see what we can learn," Landis said. "And then a year from now, let's see what the situation is. Have we reduced jail populations without detrimental impacts to public safety? Has it changed the failure to appear rates? If our current practice retains people solely because of their ability to bond out, then we definitely need to reform it."