I have spent most of the past hour on this post. That is after telling myself I must stop letting my temper flare over politics.
However, I can no longer keep my mouth shut about what I see as wrongs in the hope that others see the same wrong. Keeping silent is its immorality; it is a cowardice I need to refuse.
Forget Dog Whistles (Sheila Kennedy)
In the ten-plus months of this horrific excuse for a federal administration, the racism that powers the MAGA movement has become impossible to ignore or minimize. Trump and his sycophants aren’t even trying to mask their hatreds–they have withdrawn funding from universities and other organizations that engage in even the most modest efforts to level the playing field for minorities; waged war against (their version of) DEI; fired competent Black officials and replaced them with manifestly unqualified White ones; sent masked goons into Blue cities to kidnap Brown people…the list goes on.
Now, several media outlets report that the FBI has officially abandoned what has for years been its top domestic terrorism concern: White nationalism. The agency has cut its ties with two major civil rights watchdogs, yielding to pressure from MAGA influencers and Donald Trump’s FBI Director Kash Patel.
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What is so depressing is the “in your face” evidence that Americans haven’t come very far since the Civil War, that a significant percentage of White Americans continue to hate and fear people who are different. White Christian Nationalism is, in a number of ways, a continuation of the worst of the Confederacy, and it is still as fundamentally unAmerican as it was then.
Trump and MAGA are tearing down more than the East Wing of the White House. That destruction is symbolic of the arrogance with which they are trying to destroy the very fabric of a nation trying to live up to the principle that all people are created equal.
I think there is a connection between education and the health of our democracy. Without education, we get tricked about our history; we get fooled about why there is no economic progress. So, who benefits from keeping we the people ignorant. And teaching ignorance is what I saw when reading Our New Diploma Problems by Michael J. Hicks.
Indiana’s largest, and growing, problem is that we send too few young Hoosiers to college. The decade-long decline has been so bad, and so sustained, that we are now graduating and keeping young people beneath the replacement rate of our already dismal educational attainment.
This ensures we will slide toward the bottom of the nation in our share of college graduates by mid-century. That matters for our economy because over the past half-century more than 100% of economic growth accrued to places in the top half of educational attainment. So, if you wish to grow the place where you live — whether it’s a county, city or state — it needs to have better than average educational attainment.
The second problem is that too many young Hoosiers who don’t head to college lack the job skills to obtain meaningful employment that will lift them out of poverty. And, just to be clear, we have an excess supply of young Hoosiers who haven’t been to college.
I’m aware that large employers complain to economic developers and legislators that they struggle to find qualified workers for entry-level jobs. However, taking these complaints seriously is one of the worse examples of selection bias available today.
Employers that need college graduates or applicants with advanced degrees don’t typically complain to legislators. They recruit elsewhere.
That doesn’t mean the new diploma changes are without benefits. The new diploma does increase student exposure outside the classroom. Schools will be charged with finding more internships and developing more hands-on learning opportunities. Few Hoosier adults would find fault with that, except to acknowledge that these changes also come at a steep cost.
To accommodate work outside the classroom, the new diploma requirements reduce academic requirements across the board. In fact, under the new rules, it is now possible to get a high school diploma with mathematics courses that are mostly taught in middle school and have been since the 1920s. Math, science, literacy, history and writing requirements have all been reduced. These are the lowest diploma standards in modern state history.
Does it surprise anyone that Indiana's Prosecuting Attorneys want to take away Hoosier's right to bail in all cases except murder and treason? That they want to copy the federal system where bail is denied to anyone falling into a category termed "dangerous" without looking at the individual; where the bail system becomes another form of incarceration? I was held by the federal government because my non-violent, victimless crime fit into a category for which Congress decided on political grounds the perpetrators would not have the right to bail. I also got no credit time against my sentence for my lack of freedom. So when Jarrod Holtsclaw writes the following in Bail and release reform: Preventative detention as a tool for public safety, there is a healthy dose of BS and misinformation:
At least 22 states and the federal government allow the most dangerous arrestees to be held without bail, and Indiana judges should have that discretion to protect the public in that way.
It is not that the arrestees are dangerous; it is their crimes are the ones that the legislature finds politically expedient to keep in jail.
I did a quick and dirty search on Google Scholar, since there has been a change in the case law since I resigned from the Indiana Bar. Here are the results:
Fry v. State, 990 NE 2d 429 - Ind: Supreme Court 2013
A criminal defendant now charged with murder challenges the constitutionality of the statutory provision assigning him the burden of showing he is entitled to bail. After due consideration, today we hold that the burden must be placed upon the State to prove the defendant should be denied bail. Nevertheless, given the facts and circumstances of this particular case we affirm the trial court's decision denying the defendant bail.
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The right to bail is "a traditional and cherished right." Bozovichar v. State, 230 Ind. 358, 361, 103 N.E.2d 680, 681 (1952). It "prevents the infliction of punishment prior to an adjudication of guilt and permits the unhampered preparation of a defense." Id. Its purpose is therefore not punitive, but instead it guarantees a defendant will be present to stand trial on his charges.[1] Phillips v. State, 550 N.E.2d 1290, 1294 (Ind.1990). "The right to freedom by bail pending trial is an adjunct to that revered Anglo-Saxon aphorism which holds an accused to be innocent until his guilt is proven beyond a reasonable doubt." Hobbs v. Lindsey, 240 Ind. 74, 79, 162 N.E.2d 85, 88 (1959). "Unless that right is preserved, the presumption of innocence, secured only after centuries of struggle, will lose its meaning." Bozovichar, 230 Ind. at 361, 103 N.E.2d at 681.
That the right to bail is so deeply valued, however, does not mean that it is unqualified. The Indiana Constitution specifically provides that "[o]ffenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong." Ind. Const. art. 1, § 17.[2] We have thus said that "as a general rule, murder and treason shall not be bailable," except "in either 435*435 one of two cases: 1st. When the proof is not evident; 2d. When the presumption is not strong." Ex parte Jones, 55 Ind. 176, 179 (1876). "In either one of these two separate and distinct cases, the offence shall be bailable." Id.
This qualification was proper because murder is "the most serious charge that can be lodged by this state against an individual and carries with it the possibility of the imposition of a sentence of death, society's harshest penalty," Phillips, 550 N.E.2d at 1294-95, and the purpose of bail would likely be disserved by an unqualified right in such a case. "Given the seriousness of the charge and the severity of the consequences that could potentially attach, the likelihood that an accused person would appear for trial if let to bail is sufficiently doubtful that an initial presumption that no monetary sum could provide an adequate assurance of attendance at trial" is appropriate. Id. at 1295.
We have also long-held that the burden is placed upon the defendant to show that either of those two separate and distinct circumstances exist — i.e., to show that in his murder case the proof is not evident, or the presumption not strong. Bozovichar, 230 Ind. at 366, 103 N.E.2d at 683; see also Ex parte Jones, 55 Ind. at 180; Ex parte Heffren, 27 Ind. 87, 88 (1866). However, the presumption against bail in a murder case — and the defendant's corresponding burden to show otherwise — is only permissible under the Constitution "so long as that person is afforded the type of procedural due process hearing that will guarantee that bail is not denied unreasonably or arbitrarily." Phillips, 550 N.E.2d at 1295.
In 1981, the General Assembly codified this case law into § 35-33-8-2, which states, "(a) Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable. (b) A person charged with murder has the burden of proof that he should be admitted to bail." Ind.Code § 35-33-8-2. Fry challenges subsection (b) of this statute, and, by extension, our prior case law.
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The State argues that the presumption of innocence is not the only factor at issue in bail decisions, which is quite correct. As we have said, the determination must primarily consider the likelihood that the accused will be present to stand trial and, in some instances, any potential danger to the community. In fact, as the State correctly continues, guilt or innocence is not a factor at all in the bail decision, which is why appellate courts avoid laying out the evidence in opinions reviewing pre-trial denial of bail. Doing so would risk improperly influencing a later trial and jeopardizing the presumption of innocence. Rather, the presumption against bail in a murder case is — as we said in Phillips — based on a presumptive likelihood that one accused of such a crime is unlikely to appear for trial no matter what the monetary consequences.
Nevertheless, we do not find the State's arguments availing. For one thing, we read Article 1, § 17, to grant a right to bail for all offenses "other than murder or treason," and those two crimes "shall not be bailable, when the proof is evident, or 441*441 the presumption strong." Ind. Const. art. 1, § 17. We do not see this in any way other than murder and treason — when the proof is evident, or the presumption strong — being exceptions to the presumptive right to bail. We think it only fair that the party seeking to apply that exception — the State — should be the one required to prove it. Cf. Konigsberg, 164 A.2d at 744 ("The burden should rest on the party relying on the exception. That is the logical and natural rule and the one which conforms with the pervasive presumption of innocence attending all criminal charges.").
Additionally, contrary to the State's argument that guilt or innocence is not at issue in a bail hearing, those matters are very much at issue in a bail hearing where the defendant is accused of murder. In fact, the "proof" and "presumption" that Article 1, § 17, refers to are the "proof" and "presumption" of guilt. What the State is seeking — and what we acknowledge that we have always required — is for a criminal defendant accused of murder (and who is presumed innocent until found guilty beyond a reasonable doubt) to get bail only by carrying the burden of proving that he is probably not guilty. This flies in the face of "the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial." Arthur, 390 So.2d at 719.
Second, in considering whether the State or defendant should carry the burden of proof in these matters, these cases tend to hold that "as a matter of convenience, fairness, and practicality, it is preferable that the state have the burden of coming forward when the accused seeks release on bail. Presumably the state is in a better position to present to the court the evidence upon which it intends to rely." Id. at 720; cf. Simpson, 85 P.3d at 487 ("Indeed, apart from the presumption in favor of bail, the State is in a position superior to that of the accused to produce evidence during a hearing because it already will have presented evidence in the process of charging the person."); Purcell, 268 Ill.Dec. 429, 778 N.E.2d at 700 ("As a practical matter, the State is in a better position to present such evidence during a bail hearing.....
What Indiana's Prosecuting Attorneys want is to undermine, if not dispose of, the presumption of innocence. They do not want to do the work of presenting evidence of a person's guilt.
And let us read the statute that Indiana's Prosecuting Attorneys and courts need to follow:
35-33-8-4(b) provides:
(b) Bail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community. In setting and accepting an amount of bail, the judicial officer shall consider the bail guidelines described in section 3.8 of this chapter and take into account all facts relevant to the risk of nonappearance, including:(1) the length and character of the defendant's residence in the community;(2) the defendant's employment status and history and the defendant's ability to give bail;(3) the defendant's family ties and relationships;(4) the defendant's character, reputation, habits, and mental condition;(5) the defendant's criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court's authority to bring the defendant to trial;(6) the defendant's previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring the defendant to trial.
Where is public safety not protected? Pay attention: "to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community."
What Indiana Prosecuting Attorneys want to relieve themselves of the work of proving public safety is in danger if a citizen is released on bail.
Pay attention to what bail is about - attendance at trial for someone presumed innocent.
I believe DeWees v. State, 180 NE 3d 261 - Ind: Supreme Court 2022 is the case that has twisted the panties of our Prosecuting Attorney.
The General Assembly's recent codification of Criminal Rule 26 and the adoption of evidence-based practices in the administration of bail aim to strike the proper balance between preserving a defendant's pretrial liberty interests and ensuring public safety. But these changes call into question the legal standards governing pretrial release, the level of discretion enjoyed by trial courts, and the standard of review on appeal.
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 should exercise that discretion to protect against the risk of flight or potential danger to the community. The trial court here did 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.[1] So, 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.
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o accomplish its goals, Criminal Rule 26 urges trial courts to use "the results of an evidence-based risk assessment" when determining whether to release a defendant before trial. Ind. Criminal Rule 26. This assessment, "based on empirical data derived through validated criminal justice scientific research," aims to assist a court in evaluating the likelihood of a defendant committing a new criminal offense or failing to appear in court. I.C. § 35-33-8-0.5. Evidence-based practices in the criminal-justice system have shown "considerable promise" in recent years. See Malenchik v. State, 928 N.E.2d 564, 569 (Ind. 2010). Indeed, research indicates that the IRAS-PAT itself "has strong to moderate predictive validity when assessing risk for failure to appear and re-arrest during the pretrial stage." Justice Reinvestment Advisory Council, Report on Bail Reform and Pretrial Issues 2 (2019) [hereinafter JRAC Bail Report].
Despite this progress, Indiana's recent bail-reform initiatives call into question the legal standards governing pretrial release, the level of discretion enjoyed by trial courts, and the standard of review on appeal.
Our decision today aims to resolve these questions. To that end, we begin our discussion with an overview of Indiana's statutory bail regime. See Pt. I, infra. Our analysis here leads us to conclude that Indiana's recent bail-reform measures enhance, rather than restrict, the broad discretion entrusted to our trial courts. See id. Next, we analyze the bail decision here, holding that the trial court did not abuse its discretion by denying DeWees's request for reduction of bond or conditional pretrial release. See Pt. II, infra. Finally, we turn to a brief discussion of Indiana Appellate Rule 65(E), the implications of deviating from that Rule, and the need for appellate courts to exercise prudence and restraint—especially in developing areas of the law like we're presented with today. See Pt. III, infra.
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Whether in setting bail or modifying bail, a trial court must first consider, among "other relevant factors," the "results of the Indiana pretrial risk assessment system (if available)." I.C. § 35-33-8-3.8(b). If the trial court finds, based on the results of its assessment, that a defendant presents no "substantial risk of flight or danger" to himself or to others, "the court shall," with certain exceptions,[6] "consider releasing the arrestee without money bail or surety." Id. After considering the IRAS results, "other relevant factors, and bail guidelines described in section 3.8," the "court may admit a defendant to bail" and require the defendant to execute a bail bond, restrict the defendant's activities, place the defendant under supervision, or impose any other "reasonable" conditions on the defendant's release. I.C. § 35-33-8-3.2(a).[7]
These bail conditions aim to assure the defendant's appearance at future proceedings and "to assure the public's physical safety." Id. See also I.C. § 35-33-8-4(b) (prohibiting the amount of bail to exceed that "reasonably required" to ensure future court appearances "or to assure the physical safety of another person or the community"). This latter goal requires "a showing of clear and convincing evidence that the defendant poses a risk of physical danger to another person or the community." I.C. § 35-33-8-3.2(a). See also I.C. § 35-33-8-4(b) (specifying the same standard of proof).
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Finally, a trial court may reduce the amount of bail when a defendant presents "evidence of substantial mitigating factors." I.C. § 35-33-8-5(c). These factors, the same as those a court must consider when setting and accepting an amount of bail, must "reasonably" suggest "that the defendant recognizes the court's authority" over 268*268 him or her. Id. (citing I.C. § 35-33-8-4(b)). A trial court may not reduce bail—and in fact may increase bail or revoke bail entirely —if it finds by "clear and convincing" evidence that the defendant "poses a risk to the physical safety of another person or the community." I.C. §§ 35-33-8-5(b)-(d).
Though far from a model of clarity, this statutory scheme imparts considerable judicial flexibility in the execution of bail. What's more, these statutes clearly permit —indeed mandate—a trial court to consider all "relevant factors" when setting or modifying bail. See I.C. § 35-33-8-3.8(a). See also I.C. § 35-33-8-4(b) (directing the court to "consider the bail guidelines described in section 3.8" along with "all facts relevant to the risk of nonappearance); I.C. § 35-33-8-5 (permitting modification of bail "based on the factors set forth in section 4(b)"). This reading comports with the very nature of a bail determination. Indeed, to tailor that decision to the individual offender, the trial court should consider the "widest range of relevant information in reaching an informed decision." See Malenchik, 928 N.E.2d at 574 (quoting Dumas v. State, 803 N.E.2d 1113, 1120-21 (Ind. 2004)).
And what happened in this case to the defendant?
DeWees argues that the trial court abused its discretion by denying her motion for reduction of bail or conditional pretrial release. She insists that the State presented no "objective evidence to support a finding that [she] posed a threat to Mullins or anyone else in the community." Resp. to Trans. at 11. A victim's statement of fear, standing alone, she contends, falls short of the clear-and-convincing standard necessary for the evidence to support such a finding. Id. at 11-12.
The State counters that, while the trial court got it right, the Court of Appeals ignored the standard of review by impermissibly reweighing Mullins' testimony. Pet. to Trans. at 9-10. What's more, the State contends, the panel mistakenly "concluded that there was no evidence DeWees posed a risk to the physical safety of the victim or that she was a flight risk." Id. at 10.
While we consider this a close case, our standard of review prompts us to agree with the State.
In reaching its decision, the trial court acknowledged DeWees's "strong" family ties, her lack of criminal record, and no evidence of past bad character. App. Vol. II, p. 50. The court also cited the "extremely serious" nature of the offense; DeWees's IRAS score and unemployment status; and her potential distance from the community, depending on living arrangements. Id. at 50. These factors, the trial court ultimately concluded, prevented it from saying that DeWees "is not a substantial flight risk" or "that she is not a danger to others." In specifically finding that DeWees posed a risk of physical safety to Mullins, the court relied "[p]rimarily" on his testimony that he lived in fear. Id. at 51.
Where was there any failure in protecting the public?
How does our current right to bail endanger the public?
Which threatens public safety - our right to bail or the government's ability to declare wide swathes of offenses unbailable?
I have written more than enough on this. Hopefully, you will read this and pass it along to other Hoosiers.
sch
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