WARSAW — Local judges and bail bondsmen are expressing concerns over plans by the state to let low-risk offenders awaiting trial out of jail without posting bond.

Many people who are arrested after the first of the year and awaiting trial in Indiana may be doing so out on the streets — rather than behind bars — once Criminal Rule 26 goes into effect Jan. 1, 2020.

The state Supreme Court ruling will allow counties to release offenders they deem low-risk without bail — a term often known as “released on own recognizance.”

The purpose of the program is to decrease legal inequalities that allow people with money to bond out of jail, while those of limited means are forced to remain behind bars. It is also expected to aid in reducing overcrowding in jails.

Implementation of the program ensues following findings from a committee study on pretrial release assessments which indicated that evidence-based risk assessments reduce recidivism rates, assist in improving public safety and save taxpayers money.

On Sept. 7, 2016, the Indiana Supreme Court issued an order adopting Rule 26 of Criminal Procedure. Following the adoption of the rule, 11 counties in Indiana participated in a pilot project for the Indiana Pretrial Release.

Rule 26 Pretrial Release states that if a person is arrested and does not represent a substantial risk of flight or danger to self or others, the court should release the alleged offender without cash bail or surety, subject to restrictions and conditions determined by the court. The exceptions to this would be if the person is: charged with murder or treason; on pre-trial release for another incident; or is on probation, parole or other community supervision. 

To determine whether an arrestee presents a substantial risk to self or others, a risk assessment, known as the Indiana Risk Assessment System Pretrial Assessment Tool, will be used.

The plan has critics in both Indianapolis and Kosciusko County.

In 2016, Indiana Attorney General Curtis Hill issued a statement about Rule 26, which read, in part, “The presumption of release without posting a bond will result in violent criminals, such as rapists and child molesters, who are determined “low risk” based on their answers, walking out of jail. With no bond, a criminal may see no reason to stick around for trial. When criminals fail to appear for trial, victims see justice delayed or denied.”

Hill added, “The community will experience an increase in crime due to this “catch and release” revolving door. Prosecutors throughout the state have experienced horrifying results from the model risk assessment.”

InkFreeNews reached out to Kosciusko Prosecuting Attorney Dan Hampton for comment about Rule 26. A spokesperson in the office declined to comment, saying they prefer to learn more about the change at an Oct. 4 training session before discussing it.

Attempts to obtain more specific information about the program from a media contact at the Indiana Supreme Court were not immediately successful.

One bail bondsman said he and others in the business are concerned about the impact the change could have on their businesses.

Curtis Stavedahl, owner of Ace Bail Bonds LLC., Warsaw, is a vocal critic of the proposal and said he worries about the future of his business.

“The state is recommending that Indiana counties use the Criminal Rule 26  bail reform program,” said Stavedahl.  “I want to clarify that word ‘recommending’ — they are not mandating it. It’s purely a recommendation.”

According to Stavedahl, the use of the word “should”  rather than “shall” in the order, which states “the court should release the arrestee without money bail or surety subject to such restrictions and conditions as determined by the court” indicates a recommendation rather than an order.

“I want to make this clear — not a single person is in jail because they’re too poor to pay a bond,” said Stavedahl. “They’re in jail because they committed a crime.”

Stavedahl predicts failure to appear rates will rise in counties where the new policy is implemented.

“I’m willing to say, on the record, that eight or nine times out of 10, the people who have failed to appear in court have gotten out on a cash bond or been released on their own recognizance,” Stavedahl said. “That’s what happens when defendants get out without any skin in the game.”

Stavedahl noted a comprehensive study by the  U.S. Department of Justice between 1990-2004 examined pretrial practices of the 75 largest counties across the country to assess the most effective method of release. 

The results were the same for each of the 15 years the study was conducted and showed the most effective form of release in terms of ensuring that offenders show up for court was with the use of a bail bond, which had an 18 percent “failure to appear” rate. The least effective forms of release were own recognizance and pretrial service agency releases, with 26 percent and 30 percent FTA rates, respectively.

“The warrants are going to start stacking up. At that point, that starts to affect law enforcement in the community,” Stavedahl said. “Law enforcement officers are going to have to start working overtime to clean up the warrants —or start a warrants division — or they’re just going to let the warrants go.”

“There are some counties where they are so overwhelmed they’re just letting the warrants go, so we have a bunch of what I would call fugitives walking the streets. To me, that’s a community safety issue.”

“I’ve received information that Delaware, Hamilton and Marion counties are putting people on ankle monitors for up to 18 months until they get their cases resolved in court,” Stavedahl said. “The ankle monitoring systems can cost $10 to $15 per day, so we’re talking anywhere from $5,470 to $8,205 that the defendant will have to pay —  for the ankle monitor alone.”

The policy change was addressed at Monday night’s Kosciusko County Council meeting when Superior Court I Judge David Cates urged council members to reconsider a decision to not hire additional probation officers in 2020. Court officials contend they will need more staff to accommodate the program.

Additional probation officers will be necessary, said Cates, once Criminal Rule 26 goes into effect — a statement backed-up by Superior Court II Judge Torrey Bauer and Superior Court III Judge Joe Sutton.

Cates said probation officers are the only people trained in the county who can perform pretrial release assessments.

Revenues from bond money are primarily used to fund the drug/alcohol program, Bauer said, pointing out that this money will now dry up.

For now, there appear to be more questions than answers about the program. Those include:

1. Is the program recommended or mandated for all Indiana counties starting Jan. 1, 2020?
2. Will an attorney be present during the risk assessment questioning? 
3. Will someone be available 24/7 to conduct the risk assessment for defendants who want to bond out in the middle of the night or on a weekend?
4. Won’t many defendants lie when responding to risk assessment questions?
5. Can defendants’ answers be used against them in a court of law?
6. Will failure to appear rates increase?
7. Will the program result in higher costs for the county?

 

“I would encourage people to contact your state legislatures, local judges, county prosecutor and county commissioners and tell them not to use or fund pretrial release,” Stavedahl said. “I can’t convey the warning enough of how bad this is going to be.”

“I know the criminal justice system isn’t perfect,” said Stavedahl. “There are flaws just like any other system, but to completely move to a new system that’s been proven to be a failure is not the way to go.”

Despite claims that the program results in jails being less crowded, saving taxpayers the cost of incarcerating defendants, Stavedahl isn’t buying it. Besides the fact that Stavedahl believes the program will end up costing the county — and taxpayers— more money in the long run, he maintains that the so-called benefits of the program are inaccurate.

“They’re touting that the jail population is down. Well, of course it is, because you’re releasing people,” Stavedahl rationalized. “The jails are less crowded — because the criminals are out on the streets.”