New pretrial release rule adds risk assessments for booked inmates

A new Indiana rule requiring that booked inmates be assessed to determine risks or benefits of releasing them before trial is expected to eventually reduce overcrowding at the state’s county jails, criminal justice officials say.

Criminal Rule 26, which set Indiana’s new pretrial release protocols, was adopted by the Indiana Supreme Court in 2017, but it didn’t take effect statewide until Jan. 1.

The new system requires that inmates be released on bond or recognizance unless they present a “substantial risk of flight or danger to self or others.” It also mandates that an evidence-based risk assessment be used to help make that determination.

The rule’s expansion to all 92 Indiana counties comes after 11 counties volunteered to try it out under a pilot program that began in 2016.

In one of those pilot counties, northeastern Indiana’s heavily populated Allen County, the approach has aided low-risk offenders who don’t have the resources to post bond, said Jeff Yoder, executive director of Allen Superior Court’s criminal division services.

“It’s allowed a number of low risk folks to be released instead of sitting in jail for days or weeks on end because they can’t afford a bond,” Yoder told the Post-Tribune.

The new rule, which requires collaboration between local criminal justice entities, has the potential to decrease jail populations, but it varies from county to county, said Mary Kay Hudson, executive director of the Indiana Office of Court Services. She said the required risk assessments do not replace a judge’s discretion.

“It is designed to be additional information to inform the court’s decision. The judge always retains discretion,” Hudson said.

Clark County courts began implementing practices in 2017 ahead of the rule taking effect, starting with Clark Circuit Court 4. By mid-2019, all four of the southern Indiana county’s circuit courts were using the system.

The idea behind the new rule is to get someone assessed as quickly as possible after their arrest to present that information to the court, said Danielle Grissett, a quality assurance officer for Clark County Probation. Ideally, a staff person working within a county jail talks with each inmate before their initial hearing to determine their risk of failing to reappear if they’re released, or their danger to the community.

Officials pull each person’s criminal history and, if the person is employed, officials will reach out to their employer to verify information, Grissett told the News and Tribune. She added that substance abuse or mental health issues will also be examined, with the aim to get the inmate set up with treatment if needed.

The assessment report is then given to the prosecutor, the judge and a defense attorney, who speaks with each inmate to get more information. A public defender is on-hand to speak with inmates who may not yet have counsel.

That information is then presented to the court to help the judge determine whether a lowered bond or release is appropriate and, if so, what type of pretrial monitoring the defendant should face while out of jail.

Clark Circuit Court 4 Judge Vicki Carmichael said the practice has already shown a more meaningful exchange within courtrooms. She said that “it’s really going to make a huge difference in our ability to assess the individual and not (just) the crime.”

“The idea is that we have had over the years a number of people who have been incarcerated pretrial who simply couldn’t post a $250 bond,” Carmichael said. “And then you have somebody who has a $25,000 bond because they’re higher risk and they post it because they have the money.

“… Poor people were being held without being able to post bond more than those who could, and it really made no sense.”

Clark County Prosecutor Jeremy Mull said he has concerns with parts of the new system the county has implemented and thinks it needs to be re-evaluated.

“My opinion as the prosecutor is that in Clark County, far too many people are being released without a bond or too low of a bond,” he said. “I also see many people who are out on one bond commit additional crimes and still be allowed to be on the street.”

In October, the Indiana Supreme Court hosted a  summit in Indianapolis that brought together varied criminal justice stakeholders, including judges, prosecutors, defense attorneys, probation officers and others from across the state. The summit encouraged stakeholders, even those who are skeptical about the impact of CR 26, to keep an open mind about pretrial reform, while representatives from pilot counties praised the initial results.