I'm Embarrassed

By Donat, Gregg | Judicature, November/December 2012 | Go to article overview

I'm Embarrassed


Donat, Gregg, Judicature


The Indiana Constitution provides in Article 1 Section 12. "Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay."

"Without purchase" is an interesting concept. Does it mean that paying money will not determine who is in jail and who is not in jail? You'd never know it from the way things work in Indiana, where whether a person is held in jail or released is completely determined by the ability to pay bond money. Sixty percent of inmates in county jails nationally are awaiting disposition of their case and not serving a sentence. They simply cannot post a money bond. Liberty is purchased by a "bond schedule". I am at a complete loss to reconcile these facts with the Indiana Constitution.

The U.S. Constitution and every state constitution have a provision that "excessive bail shall not be required". The U.S. Supreme Court has ruled that "excessive" means more than is required to ensure that the individual appear in court when ordered to do so, and to ensure public safety. Bail was historically created to insure that the accused appear at trial and all court proceedings. In more recent times, the issue of "public safety" was added as a legitimate consideration in setting bail. (IC 35-33-81). Do courts really consider those issues in setting bail? I think not. Bonds are set by a schedule that determines bond based upon the class of misdemeanor or felony the arresting officer believes will be charged. How can anyone determine if such a bond is excessive? The only way to do that is to examine each individual case. Having the money to pay for bond is neither an indicator that the accused will appear at court proceedings nor is it a guarantee of public safety. Many times it appears as though the wrong people are being held in jail and some high-risk offenders are being released.

In America we generally think of bond as an amount of money but in fact, bond is "money or other terms of release" that accomplish the two goals of appearance and public safety. The evidence shows that terms individually designated to fit the circumstance of the case are much more effective in meeting those two goals. I have asked my friends from the domestic violence field: "Would a victim feel more secure if the perpetrator posted money bond or if he wore a GPS tracking device that would warn the victim if he came within 500 feet?" Clearly, at least in that circumstance, terms of release are more effective. And evidence-based practices have demonstrated in every comprehensive study that "terms" are vastly superior to "money." In the federal system and many state jurisdictions pretrial service agencies use risk evaluation instruments to set and monitor terms of release.

In the landmark case Stack v. Boyle 342 U.S. 1 (1951) the U.S. Supreme Court held, "Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." The court further ruled that the "standards ... are to be applied in each case to each defendant." The Indiana Court of Appeals decision handed down on September 4, 2012, Tommi Emerson Winn v. State, sets forth a list of possible factual considerations that should be considered individually in a case.

There is also collateral damage. Locking up a person "presumed to be innocent" can have a serious impact on other people. …

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