Panelists urge counties to keep ‘open mind’ on pretrial release reform

In 1851, when 150 delegates gathered in Indianapolis to draft the Indiana Constitution, the concept of pretrial release was considered. Under Article 1, Section 17, all offenses except murder or treason were made bailable.

Back in Indianapolis nearly 170 years later, Indiana Supreme Court Justice Christopher Goff told the hundreds of stakeholders gathered at the conclusion of Indiana’s Pretrial Summit that their reform efforts were carrying on that concept introduced in Indiana in the 19^th century.

“It is important to acknowledge our great state’s history as we conclude this summit, because it reminds us that the pretrial reform we are implementing today is the very same reform Hoosiers aspired to implement nearly two centuries ago,” the justice said.

Goff spoke at the close of the Pretrial Summit, which was attended all day Friday by judges, attorneys, probation officers and other community stakeholders ahead of the Jan. 1 implementation of Criminal Rule 26. CR 26 pilot program has been underway in 11 counties, where pretrial release programs based on evidence-based assessments, rather than money bail, have been built.

One of the pilot counties is Monroe, where the Bloomington-based courts were the first to verify their use of the Indiana Risk Assessment System – Pretrial Assessment Tool. Monroe County chief public defender Phyllis Emerick spoke during the summit’s closing panel about the successes they’ve seen in the evidence-based pilot program.

Emerick — who said she “ran quickly through the door” of pretrial reform opened by CR 26 – said the use of evidence-based risk assessments such as the IRAS-PAT move the judiciary back to the presumption of innocence. Defendants who are arrested are presumed innocent – and, thus, eligible for pretrial release — unless the evidence demonstrates a defendant has a high likelihood to miss court or commit a new offense prior to trial.

Bernice Corley, the executive director of the Indiana Public Defender Council, likewise said the premise of CR 26 better aligns Indiana’s pretrial practices with defendants’ rights under both the state and federal constitutions. Corley also stressed the importance of improving those defendants’ access to counsel, and she said public defender advocacy training under CR 26 is in the works.

From a prosecutorial perspective, both Chris Naylor, the new executive director of the Indiana Prosecuting Attorneys Council, and Hendricks County Prosecutor Loren Delp said their goal in pretrial release reform has been getting all relevant parties to the table.

As a pilot county, Delp said Hendricks County looked for consensus among all stakeholders when developing a pretrial release system. Naylor likewise stressed the need for inclusivity among prosecutors, defenders, courts, law enforcement and other interested parties.

“I ask that you embrace your role in that system, whatever it might be, however big or small you might think it is,” Goff said of the multidisciplinary pretrial reform efforts. “As you do so, please share your perspective. You can be assured that it is needed.”

As a court stakeholder, Monroe Circuit Judge Mary Ellen Diekhoff said she knows that sometimes, more experienced judges can take the view that the old system works, so changes aren’t necessary. But in response, Diekhoff said jurists must understand that “the system” they work for can help the litigants they serve. Allowing those litigants to return home rather than holding them in jail for lack of funds can do more good than harm.

The good is already manifesting itself in Hendricks County, Delp said. The county’s failure to appear rate was previously 21% but has dropped to 9% under the CR 26 pilot.

“My advice to you would be just come with an open mind, and take an honest look at it,” Delp told the crowd. “And I think, ultimately, you’ll come to the conclusion that there are improvements that can be made.”

From an institutional perspective, Mary Kay Hudson, executive director of the Indiana Office of Court Services, said the Supreme Court is continuing to work with state partners, such as the General Assembly and the Department of Correction, to provide critical resources, including funding, as all 92 counties begin implementing CR 26. One important resource is technical assistance, which Naylor said was very beneficial to the pilot counties.

In preparation for the statewide CR 26 implementation, a common refrain throughout the summit was the importance of looking to other counties for advice and ideas on making pretrial reform work.

“The advice I would give you is to go to a county that has already started this, see what they do, and go to a county that has what you have,” Emerick said. “… I think you can make what you do in your county work for you if you just don’t get hung up, ‘We can’t do X, Y and Z.’”