Bail

 Pardon a felon for speaking on matters of criminal law, it is a remnant of an older life. Nothing makes me more suspicious than the government trying to change citizens protections have against that government. After 172 years, the Republicans find fault with Hoosier's constitutional right to bail, Proposal seeks to change Constitution — and who has right to bail in Indiana. 

That provision of Indiana's Bill of Rights reads as follows:

Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.

And who is talking up this change?

Prosecutors say Sen. Eric Koch’s Senate Joint Resolution 1 would keep dangerous people off the streets before trial, while defenders and civil rights advocates say its subjectivity could endanger the rights of those presumed innocent until convicted.

In Indiana now, only people accused of murder or treason can’t get bail.

Prosecutors like people in jail. The jailed become much more amenable to plea agreements. This makes prosecutors look tough on crime. That toughness comes in handy at election time.

So he worked “with Indiana prosecutors” to draw up SJR 1. Koch’s proposal would let judges deny bail to anyone that they believe — based on “strong” evidence — “poses a substantial risk to the public.”

“We think this is a tool the Indiana criminal justice system needs to have too, in our toolbox,” Koch said.

I had a law school professor who spoke of weasel words. In the quoted material, I count two. The first is substantial, as I think that is the most important. Strong is the other weasel word - does that indicate a more likely chance of conviction, or doe sit relate to the risk? I prefer presuming it relates to the risk. Substantial risk implicates clairvoyance on the part of judges, a class not known for seeing much further ahead than their next election. That almost every judge I met in a little over of twenty years of law practice thought themselves also part of the prosecution team. 

Let me tell a story, this happened in Anderson back in the Nineties. A man was released on a bond for a D felony charge. The amount of the bail being agreed to by the prosecutor's office. I do not recall there being any history reported of this man having a violent past. While on bond, he broke into a house, stuffed a gag into an old woman's throat, the gag went into too far, and the woman died. The decedent was a Hardacre, related to the last Republican Mayor of Anderson, and the prosecutor was a Republican also. An outcry rose against the Democrat judge who granted bail. That is, until the prosecutor's agreement to the bond was made public.

Now, where is there any showing of substantial risk in such a defendant, in such a case? How was the judge to know there would be an unplanned-for death in a burglary? I say judges will prefer to deny bail because they cannot foresee all harm that might come from granting bail, and any harm that does happen will be held against them at election time. Judges do not want a return to private life, to having to earn their keep.

But Koch proposal supporters and detractors alike say the motivation goes back further, to a four-year Indiana Supreme Court review of the bail system and the rule change in which it culminated.

The court in 2020 told lower courts they should release arrestees without bail as long as those people are not “a substantial risk of flight or danger to self or others,” hadn’t already been out on bail, or hadn’t already been on probation or parole.

Criminal Rule 26 reversed previous logic that arrestees should stay in pre-trial detention until they could cough up the cash to get out.

For SJR 1 proponents like Daviess County Prosecutor Dan Murrie, that’s part of the “disconnect” between bail on the national level versus in Indiana.

Uh huh, just what we need to do is make Indiana more like the federal government. I always thought Republicans supported states rights. Here they want the state to abandon its own view of its citizen's rights in favor of the homogenization of federal law. The federal government gives great power to its prosecutors, Indiana chose in 1851 to limit the power of the state government to willy-nilly incarcerate its citizens. The need felt then for limiting government's power is even more needed today.

But she argued that the rule has already been used to approve overly high bails, citing 2022’s DeWees v. State. In that case, the Indiana Supreme Court upheld a $50,000 bond for an 18-year-old accused of being the driver in an armed burglary because she was deemed a flight risk and a risk to the alleged victim’s safety. Sierra DeWees had no prior record and no way to pay.

Murrie said he’d personally experienced people in Daviess County allegedly commit crimes while out on bail for earlier alleged crimes — and had noted similar cases in counties across the state. He declined to name specific cases.

No specific cases? 

As for the current statutory law, the reporter may not have known of Indiana Code 35-33-8-5 (d)

The court may revoke bail or an order for release on personal recognizance upon clear and convincing proof by the state that:

(1) while admitted to bail the defendant:

(A) or the defendant's agent threatened or intimidated a victim, prospective witnesses, or jurors concerning the pending criminal proceeding or any other matter;

(B) or the defendant's agent attempted to conceal or destroy evidence relating to the pending criminal proceeding;

(C) violated any condition of the defendant's current release order;

(D) failed to appear before the court as ordered at any critical stage of the proceedings; or

(E) committed a felony or a Class A misdemeanor that demonstrates instability and a disdain for the court's authority to bring the defendant to trial;

(2) the factors described in IC 35-40-6-6(1)(A) and IC 35-40-6-6(1)(B) exist or that the defendant otherwise poses a risk to the physical safety of another person or the community; or

(3) a combination of the factors described in subdivisions (1) and (2) exists.

which does not prevent one getting bail, only revocation of bail when committing a new crime. Odd, the Daviess County prosecutor did not mention there was a remedy, a protection for the public, when a defendant committed a new crime while on bail.

Nor was there any mention of Indiana Code 35-33-8-3.2 (a) which already includes public safety in the calculating of bail:

(7) Release the defendant on personal recognizance unless:

(A) the state presents evidence relevant to a risk by the defendant:

(i) of nonappearance; or

(ii) to the physical safety of the public; and

(B) the court finds by a preponderance of the evidence that the risk exists.

***

(9) Impose any other reasonable restrictions designed to assure the defendant's presence in court or the physical safety of another person or the community.

 The prosecutor's and the legislator's answers to questions about why these statutes are inadequate I would find most interesting. 

And in the Dewees case cited above, the Indiana Supreme Court had this to say about protecting the community:

Today, we hold that these statutory reforms enhance, rather than restrict, the broad discretion entrusted to our trial courts when executing bail. What’s more, a trial court can and shouldexercise that discretionto protect against the risk of flight or potential danger to the community.The trial court heredid just that. And, so, we affirm its order denying the petitioner’s motion for bond reduction or conditional pretrial release. We emphasize, however, that neither our affirmance of judgment nor our grant of transfer affects the trial court’s order conditionally releasing the petitioner to pretrial electronic home detention with GPS monitoring.1So, should either party seek modification of the petitioner’s conditional release, we remand with instructions for the trial court to conduct a hearing consistent with this opinion

Good grief! Has history not shown us how protecting "public safety" has been abused? We have the disastrous War on Drugs for public safety. Others have found protecting public safety meant rounding up minorities and placing them in concentration camps. We had racial segregation in this country for public safety. Perhaps, Mr. Koch had no history classes, or perhaps he found them a time for sleep.

For SJR 1 supporters, Koch’s proposal would weigh public safety more heavily in bail decisions, but others say it is subjective criteria rife with potential for misuse.

“Indiana’s focus is more on the attendance of the defendant at future hearings,” Murrie argued. “As prosecutors, we would like to see that expanded, giving judges more tools than they have now to also protect the people in the community.”

“The foundational piece of freedom and economic prosperity is public safety,” he added. “And that’s what we’re after.”

 I see the General Assembly has not changed the requirement that anyone on bond committing a new crime while on bail, cannot be concurrently sentenced for their crimes:

35-50-1-2

(e) If, after being arrested for one (1) crime, a person commits another crime:

(2) while the person is released:

(A) upon the person's own recognizance; or

(B) on bond;

the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.

At law school, we are taught the criminal law serves as a deterrent. Judges and prosecutors proclaim this as if they carried cudgels. If this is not a sufficient deterrent, why doesn't the Daviess County prosecutor or Mr. Koch say so?

Omitted from all these fine statements in the press, judges have a great leeway in how they set bail, which can actually affect the process. They can set a relatively low bond, but require it be in cash. If you make minimum wage, how likely is it you can make bail when it is a $10,000 cash bond? In the Dewees case, the defendant was put on a GPS tracker. There are tricks not mentioned in the lawbooks.

Lastly, I doubt the General Assembly has thought of providing for the counties where new jails will need to be built, or reimburse counties for suits on jail overcrowding. We had that in Madison County back in the Nineties, where the judges were approving the very high bonds requested by the county prosecutor, and the Sheriff became a very possible defendant in a federal civil rights lawsuit.

No, I cannot see any good reason for this change in Indiana's Bill of Rights. It is pandering to the prosecutors using inflammatory tactics for frightening Indiana residents into giving up their right to a reasonable bail. If passed, it will make money for lawyers suing over jail overcrowding.

sch 1/22