Study committee begins summer review of criminal justice reform initiatives

As criminal justice reform efforts continue across the state, members of the Indiana General Assembly are meeting this summer to discuss issues related to pre-trial release, indigency and sentencing, among others.

The Interim Study Committee on Corrections and Criminal Code held its first meeting Tuesday, led by Sen. Mike Young, R-Indianapolis, and Rep. Wendy McNamara, R-Evansville. The summer study committee — which also includes Dave Powell, executive director of the Indiana Prosecuting Attorneys Council, and Bernice Corley, executive director of the Indiana Public Defender Council — met for nearly four hours to discuss three topics: the impending implementation of Criminal Rule 26, the definition of “indigent” and the appropriate look-back period for prior, unrelated convictions in sentencing.

Here’s a look at the committee discussion:

Criminal Rule 26 — Pretrial release
Slated to take effect in a matter of months, Criminal Rule 26 holds that arrestees must be released without money bail or surety as long as they are not a flight risk or a danger to themselves or others, and as long as they are not charged with murder or treason. In determining whether someone is a flight risk or danger, the rule directs courts to “utilize the results of an evidence-based risk assessment,” though courts aren’t required to conduct an assessment if it will delay release.

Criminal Rule 26 is currently being implemented in an 11-county pilot program, but courts in all counties will be subject to the rule come Jan. 1. Marion County is not part of the official pilot, but the Indianapolis courts have still been operating under the rule and utilizing the Indiana Risk Assessment System, or IRAS, when making pretrial release decisions.

Marion Criminal Court Judge Christina Klineman and Christine Kerl, Marion County’s chief probation officer, discussed the county’s experiences with CR 26 during the Tuesday study committee meeting. The two main factors to consider when making pretrial release decisions, Kerl said, is whether an offender will appear in court, and whether they will commit another offense if they are released.

So far, Kerl said Marion County has conducted 1,892 pretrial assessments since July 1, 2017. Of those assessed defendants, 9 percent have been rated as low risk, 48 percent as moderate risk and 43 percent as high risk. Kerl noted the low percentage of low-risk defendants is attributable to the fact that many low-level and first-time offenders are automatically released.

The IRAS evidence-based assessments also contribute to decisions on the level of pretrial supervision offenders will receive. However, if a defendant on pretrial release is terminated from the program, they will no longer be under supervision and could be required to post bail or go to jail, Kerl said. Since July 1, 2017, 33 percent of defendants have been terminated from the program for new felony offenses, technical violations or failures to appear.

Another element of the pretrial release program is connecting defendants with services, such as drug and addiction treatment services. Kerl noted, however, that individuals released pretrial can be recommended services and encouraged to use them, but services cannot be required without a court order.

St. Joseph County, which is part of the pilot program, has seen financial benefits from the implementation of CR 26, according to Democratic Sen. Karen Tallian, who sits on the committee. Tallian said she’s spoken with John Broden, a judge on the St. Joseph County bench who previously served in the Legislature. Under the pretrial pilot, Tallian said Broden told her his county has saved roughly $3.5 million.

Though counties are generally reporting success in the initial implementation of CR 26, lawmakers and other stakeholders pointed to some shortcomings.

Lena Hackett, for example, is the founder and president of Community Solutions, an organization that engages in criminal justice reform work, among other initiatives. The issue with the implementation of CR 26 will be resources, Hackett said — not every county will have the technical, logistical or financial capacity to provide all of the services defendants need.

Further, Powell of IPAC cautioned committee members against believing the pretrial services program would end jail overcrowding. The program might treat a symptom, he said, but it won’t eradicate the overcrowding issue.

The study committee will return to its discussion of Criminal Rule 26 at its Sept. 18 meeting, when Young said other judicial stakeholders, including those from the Indiana Supreme Court, will address the committee.

Indigency
Though indigency is a major feature in Indiana’s criminal justice system, Tallian, D-Ogden Dunes, pointed out that state statute doesn’t define what it means to be “indigent.” What’s more, a person who is deemed to be indigent for purposes of getting a public defender isn’t necessarily also going to be indigent for purposes of court fees and costs.

There are four main issues where indigency is a factor, Tallian said: public defenders, court costs/fees, probation/post-conviction fees and bond/bail. Among those four categories, there is no continuity in indigency determinations, the senator said.

Tallian’s proposal during the Tuesday meeting was general: develop a comprehensive system for making indigency determinations, or at least systems that are similar among the various determinations. Mark Carnell of the Public Defender Council offered the specific idea that once a person is deemed indigent, that status should follow them through the life of the case.

Powell raised one concern about Carnell’s suggestion. He gave the hypothetical of a person who does not have a job and is deemed indigent. If that person is offered a job during the pendency of their case, how can we ensure that person doesn’t reject the job offer just to keep their indigency status?

Carnell, however, said that kind of “gaming the system” is not frequent. Further, Andrew Cullen of the Indiana Public Defender Commission noted a person’s indigency status can change.

Look-back periods
Pursuant to Senate Resolution 52, Tallian also raised the issue of look-back periods for prior, unrelated convictions in sentencing. An analysis conducted by the Legislative Services Agency found only 12 crimes where the look-back period is time-limited, with the limits ranging from five to 15 years.

But among the remaining 70 crimes analyzed, there was no time limit to prior look-back periods. Tallian noted those crimes are often relatively minor, such as the offense of visiting a common nuisance – that offense is not time-limited at all as a prior, unrelated offense, but the more serious offense of operating while intoxicated is limited to seven years as a prior offense.

Young posited the general theory that more serious offenses should have longer look-back periods, while less serious offenses should have shorter time limits. In a similar vein, Cullen reminded the committee of the Indiana Constitution’s commitment to reformation over punishment.

Other business
The study committee’s Tuesday meeting also included a discussion of the 2017 Senate Resolution 58, authored by Senate President Pro Tem Rod Bray, R-Martinsville.

Young, speaking on the resolution in Bray’s absence, said the resolution suggests that all proposed criminal legislation should be funneled through the criminal study committee before being brought to the full General Assembly. Further, if a bill involving criminal penalties is introduced in a noncriminal standing committee, the legislation must also be considered by a criminal standing committee.

McNamara, the committee’s co-chair, noted the same thing is done with requests for new courts and judges: those requests are first vetted by the Interim Study Committee on Courts and the Judiciary before being brought to the House Courts and Criminal Code or Senate Judiciary committees. Similarly, bills with a significant fiscal impact are generally vetted through the Ways and Means Committee even if they were introduced in another standing committee.

Rep. Matt Pierce, a Bloomington Democrat who sits on the study committee, supported the vetting concept. His hope, Pierce said, would be for the study committee to view proposed criminal legislation from a big-picture perspective, while the standing committee would meet during the legislative session to discuss the specifics of the bills.

Video from the Aug. 27 meeting can be viewed here.