Mimesis Law
29 May 2020

Indiana Prosecutors Oppose Bail Changes: More Work, Fairness

October 26, 2016 (Fault Lines) — It’s only been a month, but prosecutors in Indiana are already sick and tired of bail reform:

Before it’s even taken its first steps, prosecutors are asking the Indiana Supreme Court to kill a proposed bail reform program that would see more low-risk arrestees released without bond.

Of the tremendous advantages prosecutors have, few are more powerful than bail.

For the most part, prosecutors are in the jail and prison business. Whether they’re going after a guy who stole a car, some kid who got caught with a joint, or a powerful businessman who didn’t quite follow the securities rules, they have basically the same solution; they want everyone in their crosshairs to go into custody. They might want probation or treatment or restitution here and there, but the real currency in our system is time behind bars. They get that in advance when their targets are detained pending trial. Who wouldn’t love to accomplish their goals before they even do much work?

Also, people in jail are more likely to plead guilty than people who are free. It’s hard to sign up for prison time when you’re out and about, eating real food, sleeping in a real bed, and interacting with the people you love without a guard hovering over your shoulder. Willingly going into custody is incredibly difficult. Continuing your time in custody isn’t nearly as tough, and in many places, where convicted and sentenced defendants end up is much nicer than where they house legally innocent people.

Bail gives the prosecution what it wants early, and it makes their job easier, but neither of those is a great reason to put human beings in cages. The fact the people helped by Rule 26 are low-risk makes those questionable benefits of a harsher bail system even less appropriate. Prosecutors, however, have some interesting arguments:

In Indianapolis, Deputy Prosecuting Attorney Ryan Mears, who supervises the Marion County Prosecutors Office’s major felony division, says the rule likely wouldn’t have a positive impact on the jail’s overcrowding issues – and might even exacerbate it.

“This is going to drastically slow down the procedure of people requesting bail,” he said.

Mears is clearly looking out for defendants, you see. His office, which is dutifully pushing to keep people in jail, is going to keep doing that. The hordes of people his office has apparently kept in jail in the past have it lucky, though. Under the new system, all of those low-risk people he’d prefer be held (and would be held as it was) would clog the courts with requests to be released because they’re neither a flight risk nor a danger. They would be denied the thing it seems they’re currently denied or will be denied, which upsets Mears, not when it happens the way things were, but when the people who bear the brunt of the current law have to deal with it in new system that will eventually maybe correct what was wrong before.

Perhaps someone should point out to Mears that, if he’s really worried about a slow bail process, he might be better off suggesting the times in Rule 26 just be shortened. Or maybe he could just stipulate to the immediate release of people he’d feel bad enough about jailing to see slowing down the procedure as a problem.

Prosecutors’ timing opposing the change is also strange in light of the current status of the rule:

A trial run of the program – formally adopted last month as Criminal Rule 26 – has already gone into effect in nine pilot counties, including Hamilton, Hendricks and Bartholomew counties.

Consider this too:

The Indiana Supreme Court adopted the rule last month at the advisement of a study committee of trial judges, probation officers, prosecutors, public defenders and other stakeholders.

And then contrast it with both the timing of their announced opposition and their reason for it:

On Monday, the Indiana Prosecuting Attorneys Council released a brief statement asking the Supreme Court to rescind Rule 26:

“After reviewing the language of Criminal Rule 26, The Indiana Prosecuting Attorney’s Council has voted unanimously to object to implementing it and requests that the Supreme Court withdraw the Rule until further research has been completed.  We have seen no credible data or research that suggests a systemic pretrial detention ‘problem’ exists in Indiana.”

Poor Mears is now stuck in an unenviable position where he’s said the rule won’t help people get bond and may actually hurt them, exacerbating jail overcrowding issues, while his fellow prosecutors deny there’s a pretrial detention problem at all. Of course, it would all make perfect sense and be quite consistent if you view jail overcrowding not as a problem, but as a feature of the system.

Moreover, the timing of them voicing their concerns about the law is bizarre. Prosecutors were on the committee that made the changes, as the executive director of the Indiana Public Defender Council, Larry Landis, explained. It lasted three years. Was there no point that the prosecutor or prosecutors in the room thought to point out that they believed the committee’s purpose was to solve a problem they deny exists?

Landis, on the other hand, makes sense:

“If a person is not at risk of flight, not a danger to the community, and presumed innocent, why shouldn’t they be released before trial without money bail?” Landis said.

“We think poor people should not be held in jail to await trial just because they’re poor.”

He also said that similar programs in Kentucky Colorado and Wisconsin have shown positive results.

“The data from a number of other jurisdictions shows that if you detain people unnecessarily and you keep them in jail, you actually increase recidivism,” Landis said. “If you take somebody who’s got a family and a house, a blue collar wage earner, if you hold them in jail for six months, they’re going to lose their job, their house. And sometimes you hold them for six-to-nine months. And you introduce them to a new peer group who are real criminals. And not surprisingly, they get worse.”

It comes back to prosecutors’ infatuation with jail and prison. They look past the fact they’re both basically criminal boot camp. People for the most part go in as normal human beings who made mistakes, but it’s hard to maintain even the slightest hint of normality when their daily quality of life and in many cases their survival depends on adopting a set of values that will guarantee their return to custody should they continue to live in accordance with them upon their release.

Mears also reveals the laziness that’s often at the root of prosecutors’ positions on important issues:

Mears says he worries Rule 26 would lead to prosecutors and judges having to decide on bail based on “nothing more than the arrestee’s own words” because of insufficient time to investigate them.

It would seem that Mears hasn’t heard of criminal history reports. Maybe he’s totally unaware of the fact that even an internet search will find criminal history on most people.

How hard is it for Indiana prosecutors to look up if someone has failed to appear? If the person was arrested, it was presumably founded on probable cause and done by a cop.

How is it that almost instant access to a person’s criminal history and the crime itself forces people in the system to have to decide bail based on nothing more than the arrestee’s own words? If the government is arresting someone and requesting bail, shouldn’t they have done a sufficient investigation already?

What it comes down to is that prosecutors love an unfair advantage, and they hate more work, especially when they’re forced to work to maintain that unfair advantage. Their position on Rule 26 is really just a reflection of those facts.

2 Comments on this post.

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  • SPM
    26 October 2016 at 4:53 pm - Reply

    The only thing bail provides is fodder for poor quality reality tv shows. I am often called a “textualist” since I believe that the law in general and the Constitution in particular should mean what they actually say. In this case, the key phrase is “innocent until proven guilty.” If you believe an individual is a danger to society, then rapidly seek an indictment and rapidly proceed to trial.

    Relying on the immortal phrase “the Constitution is not a suicide pack” I suppose there can be circumstances where an individual is such a flight risk that they must be kept incarcerated until trial. However, when it comes to bail as a means for securing an individual’s appearance for court proceedings, I think it is logically flawed. If someone can provide a $1M bond in cash or property, then almost by definition they are a flight risk. On the other hand, if a poor soul cannot put up even $100 in bail, do you really think that he will be able to get very far if he decides to run?

  • bacchys
    27 October 2016 at 1:37 am - Reply

    Shouldn’t the investigation happen before someone is tossed into jail?