As a career prosecutor, I am dedicated to fighting for the rights of victims and keeping people safe. When I file criminal charges, I consider the safety of victims and the community. When the judge determines bail, that decision should strike a balance between the presumption of innocence of the accused, the rights of the victim to see justice done, and the protection of the community from further harm.
The newly announced rule by the Indiana Supreme Court is a departure from that balance which may be bad for victims and dangerous for the community. The policy reason for the rule appears to be an effort to reduce jail populations. However, such an effort should require a comprehensive legislative review of Indiana’s bail procedures along with broad public input.
Essentially, Rule 26 creates a new standard: the presumption of release. Current Indiana law sets forth a careful process for trial court judges to evaluate conditions for release, including bail. With Rule 26, the Court restricts the discretion of experienced judges by implementing a model risk assessment. The risk assessment relies on a staff decision based on unsworn, largely self-serving information from defendants. The process is believed to be the basis for lowering jail populations so it stands to reason that many of the defendants will be categorized as "low risk" or "moderate risk".
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. 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. According to the Indiana Prosecuting Attorney Council, in one instance, a young man helped to lure a young girl into a car to rape and murder her. He ultimately choked the life out of her and then threw her into a lake. He was found to be "low risk". In another instance a twice convicted rapist who was charged with a third rape was categorized as "moderate risk". The presumption of release combined with a defective risk assessment process will lead to an increase in crime and as a result more crime victims.
To be clear, the current statute allows trial judges to use their discretion in determining whether or not bail is appropriate and setting of conditions. In many instances, low bond or no posting of bond releases occur daily as do the setting of no bond holds for murder and high bonds for violent and chronic offenders. This process works and there is no reliable data that demonstrates otherwise. Before the Court moves further on in the implementation of its Rule 26, I’m hopeful that the Court will work with prosecutors, crime victims, law enforcement officers and the Indiana legislature to study the current process and accumulate sufficient data to clearly determine that there is a problem that needs fixing, and to determine that a new process considers not only the presumption of innocence, but also is sensitive to the impact on crime victims and the threat to public safety.