Judges persuade Commission on Courts to reject bail bond proposal and review use of psychologists

Proposed legislation regarding bail bonds died Oct. 21 in the Indiana General Assembly’s Commission on Courts hearing after Indiana Supreme Court Chief Justice Brent Dickson raised concerns about constitutionality and legislative overreach.

“Once a suspect is arrested and placed in custody, it is the exclusive responsibility of the judiciary to evaluate and make all decisions regarding the basis for pre-trial release, if any,” Dickson, who is a member of the commission, told his colleagues. “While it may be the Legislature’s prerogative to regulate the business of insurance, including bail surety bonds, this legislative power cannot impinge upon the judiciary’s authority to implement the constitutional right to bail, including the setting of all terms and conditions of release from pre-trial detention.”

The commission heard extensive testimony in July from bail bond agents and Hendricks Superior Judge Robert Freese about the differences between and consequences of surety bonds and cash bonds. Bail bond agents alleged that courts are increasingly requiring cash bonds as a way to finance their judicial operations.

After Dickson made his remarks at Monday’s meeting, commission chair Sen. Brent Steele said he did not see anything in the proposed bill that would limit judicial discretion as the chief justice described. Judges could still set the bail at the amount they wanted, but the defendants would have the option of choosing the type of bail that best suits their resources, the Bedford Republican said.

Dickson responded that in his reading of the draft, the legislation would prohibit judges from releasing defendants based on their own recognizance. He pointed to Freese’s comments that discharging low-level offenders without bail has proven to be very effective in getting them to appear at their court dates.

Also, Dickson raised concerns that the legislation would prohibit any future movement by judges to use risk assessment tools when they make their pre-trial detention decisions. He said for individuals not charged with non-violent felonies, these tools have been shown to result in a high number of defendants returning to court, greater public safety and taxpayer savings.

Steele again said he did not see how the bill would restrict judges. He then asked for a motion on the proposed legislation. None of the commission members responded, causing the draft to die.

Allen Circuit Judge Tom Felts kept alive a proposal that would remove the current statutory requirement that judges appoint at least one psychiatrist to the team assessing the competence and mental health of a criminal defendant.

At the Sept. 24 meeting, members of the Indiana Psychological Association testified the law should be rewritten because the shortage of psychiatrists willing to assess criminal defendants is causing significant problems for the courts. However, certified forensic psychiatrist George Parker countered the medical training psychiatrists receive is invaluable in evaluating defendants’ physical aliments and use of medications.

Steele did not offer any proposed legislation regarding the use of psychologists and psychiatrists at Monday’s session, saying his interpretation of the commission’s response to the testimony was that the system is not broken and does not need to be fixed.

However, Felts echoed many judges when he noted courts can have an extremely difficult time finding psychiatrists. He said he would like to see a proposal go forward and Steele agreed to have a bill drafted.

The commission unanimously approved a proposal adding another magistrate to Vanderburgh County.

Also, the commission unanimously endorsed a bill that would tweak the language in the pendency of appeal statute. Henry Circuit Judge Mary Willis, representing the Indiana Council of Juvenile and Family Court Judges, told the commission the push for the change was ignited by the Indiana Supreme Court decision in In Re the Matter of Adoption of Minor Children: C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M., 37S03-1303-AD-159.  

Willis described this case as the “perfect storm.” The adoption petition proceeded before the order for termination of parental rights had been finalized which, under the current wording of the state statute, is legal. However, when the Supreme Court vacated the adoption decree, the adoption was reversed and the minor children were removed from the only home they ever knew.

To prevent this from happening again, the Juvenile Justice Improvement Committee and the Indiana Council of Juvenile and Family Court Judges recommended changing Indiana Code 31-19-11-6. The proposed wording makes clear that courts may not hear and grant a petition for adoption if the termination of parental rights is being appealed.

“That way, when kids get their final adoption decision, it is final,” Willis said after the hearing. “The horrible call is not made that there is a problem with that adoption. And the biological parents know they have every right to pursue their appeal until a final decision is made.”