Criminal Rule 26 – New Rules For Bonding Out – Now In Effect
January 1, 2020 at 11:11 p.m.
By Amanda [email protected]
The Indiana Supreme Court signed CR 26 into law to take effect in all courts Jan. 1, 2020, after two years of pilot programs in 11 counties.
The rule is intended to improve pretrial practices in the state by encouraging trial judges to engage in evidence-based decision-making at the pretrial stage. It states:
“(A): If an arrestee does not present a substantial risk of flight or danger to self or others, the court should release the arrestee without money bail or surety subject to such restrictions and conditions as determined by the court except when: (1): The arrestee is charged with murder or treason. (2): The arrestee is on pre-trial release not related to the incident that is the basis for the present arrest. (3): The arrestee is on probation, parole or other community supervision.”
This part of the rule had some people thinking anyone going to jail now gets an automatic get-out-of-jail-free card. That is not the case.
“The bond schedule is still in place,” Kosciusko County Prosecuting Attorney Dan?Hampton said. “People will still get bonds.”
But for certain charges, and for people who can pass the risk assessment interview, a promise to come back to court is all that will be needed to get out of jail.
“(B): In determining whether an arrestee presents a substantial risk of flight or danger to self or other persons or to the public, the court should utilize the results of an evidence-based risk assessment approved by the Indiana Office of Court Services, and such other information as the court finds relevant. The court is not required to administer an assessment prior to releasing an arrestee if administering the assessment will delay the arrestee’s release.”
Kosciusko County Probation Department officers Tammy Johnston and Rene Osborn went to three days of training to be able to conduct the risk assessments. They were trained in using the Indiana Risk Assessment System – Pretrial Assessment Tool (IRAS-PAT) questionnaire, which consists of seven questions, with multiple-choice answers that are scored between 0 and 2 points. The score at the end is what a judge will use to determine the level of supervision required for the arrestee if they are released.
The questions are:
1. Age of first arrest?
0 – 33 or older
1– Under 33
2. Number of failure-to-appear warrants in the past 24 months??
0 – None
1 – One warrant for FTA
2 – Two or more FTA warrants
3. Three or more prior jail incarcerations?
0 – No
1 – Yes
4. Employed at the time of arrest?
0 – Yes, full time
1 – Yes, part time
2 – Not employed
5. Residential stability
0 – Lived at current residence past six months
1 – Not lived at same residence
6. Illegal drug use during past six months??
0 – No
1 – Yes
7. Severe drug use problem?
0 – No
1 – Yes.
Any score 0-2 is low, 3-5 moderate and 6+ is considered high.
For domestic violence arrests, the probation officers will use the Ontario Domestic Assault Risk Assessment (ODARA) for the purpose of measuring the arrestee’s risk for failure to appear and reoffend while on pretrial supervision.
Hampton said they estimate these interviews will take about 15 or 20 minutes.
Those questions will be used, along with a complete background check and jail records, to determine a person’s eligibility to be released, Hampton said.
There are three levels of supervision, with a matrix that is designed by each county to fit their needs.
Hampton said the Kosciusko County Pretrial Work Group has met several times to discuss CR 26, including traveling to Indianapolis for a conference with representatives from every county in the state to learn from the pilot counties.
The Kosciusko County Pretrial Work Group is chaired by Kosciusko Superior Court I Judge David Cates, and includes members Sue Ann Mitchell, county council president; Sheriff Kyle Dukes; Hampton; Jay Rigdon and Dana Leon, county public defenders; Johnston; Barry Andrew, interim director of Kosciusko County Community Corrections; Matthew Graham, director of the Bowen Center; and Jail Commander Shane Coney.
That work group has set policies for the three levels of supervision. Based upon the arrestee’s category level from the questionnaire, nonviolent misdemeanor charges and certain nonviolent felony charges are able to be released on their own recognizance with or without some level of supervision. The supervision guidelines can include certain amount of times the arrestee is to contact a probation officer and other conditions, such as drug screens or programs. Those programs could include drug counseling programs at the Bowen Center, to immediately begin getting a person help instead of just incarcerating them.
A person arrested for an alcohol-related offense should be detained for the minimum number of hours shown in the blood/breath alcohol level chart. A court may not release a person arrested for a crime of domestic violence on bail until at least eight hours from the time of the person’s arrest. A court may not release a sexually violent predator defendant, a person charged with child molesting or a person charged with child solicitation on bail until the court has conducted a bail hearing in open court. Murder or treason shall not be bailable, when proof is evident or the presumption is strong.
Those who want to use this new rule to get out of jail without financial obligation may have to wait up to 48 hours, not including weekends or holidays, for the probation officer and/or the judge to finish the assessment.
For arrestees who will require some level of supervision, they’ll have to go in front of a judge for a “meaningful first appearance,” Hampton said. He said every court will have a morning of meaningful first appearances on their dockets for this new rule. Hampton said the people present in the courtroom will be the judge, a prosecutor, a public defender, the arrestee and the person who did the risk assessment.
“That’s when you run down the score, you can bring up disputes in the score, then the score will give the judge then the supervision level for his consideration,” Hampton said. “It’ll be interesting to see how it works.”
Hampton said the main point of the new rule is to keep low-risk offenders – people who may have had a lapse in judgment – out of jail.
“The bottom line is to have people in jail that should be in jail,” Hampton said.
He also said, based on the data from the pilot counties, the new rule does not appear to help with jail population and overcrowding.
When asked about his concern of people not showing up to court, Hampton said, “I always worry about people not showing up for court. I believe Criminal Rule 26 does not discourage people from showing up to court,” adding that once someone was given a chance at pretrial release through CR 26 and they don’t show up to court, their chances of getting that again are gone.
“It’s kind of a one-and-done situation,” Hampton said. Hampton also said that the pilot counties reported their failure to appear rates did not spike dramatically by using this new system.
“If it doesn’t work, we will always be evolving,” Hampton said. He said the team will meet monthly to stay on top of the new change. “I think it’s worth trying.”
The Indiana Supreme Court signed CR 26 into law to take effect in all courts Jan. 1, 2020, after two years of pilot programs in 11 counties.
The rule is intended to improve pretrial practices in the state by encouraging trial judges to engage in evidence-based decision-making at the pretrial stage. It states:
“(A): If an arrestee does not present a substantial risk of flight or danger to self or others, the court should release the arrestee without money bail or surety subject to such restrictions and conditions as determined by the court except when: (1): The arrestee is charged with murder or treason. (2): The arrestee is on pre-trial release not related to the incident that is the basis for the present arrest. (3): The arrestee is on probation, parole or other community supervision.”
This part of the rule had some people thinking anyone going to jail now gets an automatic get-out-of-jail-free card. That is not the case.
“The bond schedule is still in place,” Kosciusko County Prosecuting Attorney Dan?Hampton said. “People will still get bonds.”
But for certain charges, and for people who can pass the risk assessment interview, a promise to come back to court is all that will be needed to get out of jail.
“(B): In determining whether an arrestee presents a substantial risk of flight or danger to self or other persons or to the public, the court should utilize the results of an evidence-based risk assessment approved by the Indiana Office of Court Services, and such other information as the court finds relevant. The court is not required to administer an assessment prior to releasing an arrestee if administering the assessment will delay the arrestee’s release.”
Kosciusko County Probation Department officers Tammy Johnston and Rene Osborn went to three days of training to be able to conduct the risk assessments. They were trained in using the Indiana Risk Assessment System – Pretrial Assessment Tool (IRAS-PAT) questionnaire, which consists of seven questions, with multiple-choice answers that are scored between 0 and 2 points. The score at the end is what a judge will use to determine the level of supervision required for the arrestee if they are released.
The questions are:
1. Age of first arrest?
0 – 33 or older
1– Under 33
2. Number of failure-to-appear warrants in the past 24 months??
0 – None
1 – One warrant for FTA
2 – Two or more FTA warrants
3. Three or more prior jail incarcerations?
0 – No
1 – Yes
4. Employed at the time of arrest?
0 – Yes, full time
1 – Yes, part time
2 – Not employed
5. Residential stability
0 – Lived at current residence past six months
1 – Not lived at same residence
6. Illegal drug use during past six months??
0 – No
1 – Yes
7. Severe drug use problem?
0 – No
1 – Yes.
Any score 0-2 is low, 3-5 moderate and 6+ is considered high.
For domestic violence arrests, the probation officers will use the Ontario Domestic Assault Risk Assessment (ODARA) for the purpose of measuring the arrestee’s risk for failure to appear and reoffend while on pretrial supervision.
Hampton said they estimate these interviews will take about 15 or 20 minutes.
Those questions will be used, along with a complete background check and jail records, to determine a person’s eligibility to be released, Hampton said.
There are three levels of supervision, with a matrix that is designed by each county to fit their needs.
Hampton said the Kosciusko County Pretrial Work Group has met several times to discuss CR 26, including traveling to Indianapolis for a conference with representatives from every county in the state to learn from the pilot counties.
The Kosciusko County Pretrial Work Group is chaired by Kosciusko Superior Court I Judge David Cates, and includes members Sue Ann Mitchell, county council president; Sheriff Kyle Dukes; Hampton; Jay Rigdon and Dana Leon, county public defenders; Johnston; Barry Andrew, interim director of Kosciusko County Community Corrections; Matthew Graham, director of the Bowen Center; and Jail Commander Shane Coney.
That work group has set policies for the three levels of supervision. Based upon the arrestee’s category level from the questionnaire, nonviolent misdemeanor charges and certain nonviolent felony charges are able to be released on their own recognizance with or without some level of supervision. The supervision guidelines can include certain amount of times the arrestee is to contact a probation officer and other conditions, such as drug screens or programs. Those programs could include drug counseling programs at the Bowen Center, to immediately begin getting a person help instead of just incarcerating them.
A person arrested for an alcohol-related offense should be detained for the minimum number of hours shown in the blood/breath alcohol level chart. A court may not release a person arrested for a crime of domestic violence on bail until at least eight hours from the time of the person’s arrest. A court may not release a sexually violent predator defendant, a person charged with child molesting or a person charged with child solicitation on bail until the court has conducted a bail hearing in open court. Murder or treason shall not be bailable, when proof is evident or the presumption is strong.
Those who want to use this new rule to get out of jail without financial obligation may have to wait up to 48 hours, not including weekends or holidays, for the probation officer and/or the judge to finish the assessment.
For arrestees who will require some level of supervision, they’ll have to go in front of a judge for a “meaningful first appearance,” Hampton said. He said every court will have a morning of meaningful first appearances on their dockets for this new rule. Hampton said the people present in the courtroom will be the judge, a prosecutor, a public defender, the arrestee and the person who did the risk assessment.
“That’s when you run down the score, you can bring up disputes in the score, then the score will give the judge then the supervision level for his consideration,” Hampton said. “It’ll be interesting to see how it works.”
Hampton said the main point of the new rule is to keep low-risk offenders – people who may have had a lapse in judgment – out of jail.
“The bottom line is to have people in jail that should be in jail,” Hampton said.
He also said, based on the data from the pilot counties, the new rule does not appear to help with jail population and overcrowding.
When asked about his concern of people not showing up to court, Hampton said, “I always worry about people not showing up for court. I believe Criminal Rule 26 does not discourage people from showing up to court,” adding that once someone was given a chance at pretrial release through CR 26 and they don’t show up to court, their chances of getting that again are gone.
“It’s kind of a one-and-done situation,” Hampton said. Hampton also said that the pilot counties reported their failure to appear rates did not spike dramatically by using this new system.
“If it doesn’t work, we will always be evolving,” Hampton said. He said the team will meet monthly to stay on top of the new change. “I think it’s worth trying.”
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