This is the final installment of the Making bail series. You can find links to the prior installments here. I also plan to publish soon the full-length series so you can find it all in one place. Thank you for sticking with me through this long series. I hope you found it valuable.
OVER THE LAST DECADE, the federal government and many states have been in the throes of a soft-on-crime movement similar to what this country experienced in the 1960s. The mistakes of the 1966 U.S. Bail Reform Act have been repeated. As a result, crime has been on the rise again, this time predominantly violent crime. However, very recently there has been a push in the other direction, both across the country and here in Indiana. As the final installment in this series, we will end on positive notes.
In 2019, New York City eliminated money bail for most offenses. Crime exploded. New York residents did not like it and expressed their distaste at the polls. In 2022, Republicans running on crime issues flipped seven of New York’s Congressional seats. Also in that election, New York’s Governor, Kathy Hochul, barely won reelection in a race where crime was the prevailing issue. Narrowly avoiding defeat got the attention of the Governor, and in 2024 she implemented new bail reform. New York’s new bail law now allows judges to consider dangerousness when making bail determinations.
Indiana has also begun to recognize issues with bail reform. In the last installment, I discussed the Yeager decision from the Indiana Court of Appeals. In that case, the Court of Appeals declined to consider dangerousness, and believed that it could not rely on the facts of the case due to the presumption of innocence. The Court of Appeals made these mistakes because the momentum of the push for bail reform was perceived to emphasize pre-trial release above other considerations. To the Indiana Supreme Court’s credit, they understood this and subsequently issued an opinion reasserting the importance of considering dangerousness.
In Dewees v. State, the Indiana Supreme Court took the opportunity to explicitly state that “we hold that these statutory reforms enhance, rather than restrict, the broad discretion entrusted to our trial courts when executing bail. What’s more, a trial court can and should exercise that discretion to protect against the risk of flight or potential danger to the community.”
The Indiana Legislature has also recently acted to make sure dangerousness is properly considered in bail decisions. In 2023, the Indiana General Assembly took the first step in passing an amendment to the Indiana Constitution to allow preventive detention. Under Indiana’s 1851 Constitution, all crimes are bailable except murder and treason. To amend this provision, new language must pass two, separately elected legislatures, then be ratified by a ballot measure. The proposed amendment passed in 2023 and will be up again in the 2026 legislative session. Assuming it passes through the legislative process at that time, it will be on the 2026 general election ballot for ratification by the voters. The new proposed language would allow judges to hold defendants without bail for any crime where the defendant poses a “substantial risk to the public.” This is another positive step, but there is more work to do here in Indiana and nationwide. Let’s hope the trend continues.
We began this series with a lesson about Tiamat, the goddess of chaos, and Marduk, the god of order. Their story is humanity’s oldest story, the eternal battle between chaos and order. Part of the chaos of the universe is the chaos created by certain people. The criminal justice system is the tool humans have evolved to control these chaos-making individuals. The bail process is an exemplar in the criminal justice system of chaos and order decision-making.
From nascent tribunals in early human societies through the Middle Ages, the justice systems and rudimentary bail considerations had a heavy emphasis on order. Dangerous individuals were simply killed or mutilated. In those categories of crimes where offenders were left free pending trial, they were required to post a wergild, a money deposit in an amount equal to the calculated damages they had caused. Regardless of the type of offense, controlling for dangerousness and assuring justice for victims was paramount.
During the Middle Ages, we saw the rise of individual rights. The emphasis on individual rights reached an apex, after hundreds of years of development, with the adoption of the U.S. Constitution. Yet, even as individual rights gained prominence, policies throughout the era maintained a strong instinct for order regarding bail determinations. Most significantly, the U.S. Supreme Court’s decisions on bail affirm this proposition.
However, twice in modern history our society has taken an eye off dangerousness when it comes to bail decisions. The first was the soft-on-crime political movement in the 1960s that delivered the 1966 U.S. Bail Reform Act. That act specifically prohibited judges from considering dangerousness when making bail determinations. The predictable result of skyrocketing crime ensued, resulting in a course correction with the 1984 U.S. Bail Reform Act. The second instance of disregarding dangerousness is going on now. The modern bail reform effort is based on unsound legal theories and unfounded political and sentimental arguments, yet the effort has taken hold at the state level. It has been particularly prominent in state court systems. Uncharacteristically for Indiana, the Indiana Supreme Court led the way as Indiana followed national trends on recent bail reform.
Just as in the 1960s, we are experiencing record-setting crime due to the reform efforts. Sadly, this time it is predominantly violent crime. We are just starting to see the backlash with some policy changes and state court decisions reemphasizing dangerousness. Hopefully, there will be more of this.
I understand that this has been a long series on an esoteric topic. However, the last few years of criminal justice reform, including bail reform, have done a lot of damage. My hope is that this series will give judges and policy makers a solid grounding in these things: the evolutionary underpinnings of our criminal justice system; the hundreds of years of history emphasizing dangerousness in release decisions; the steadfastness of the U.S. Constitution and U.S. Supreme Court decisions that insist dangerousness is paramount; the mistakes of the 1966 U.S. Bail Reform Act; the weak legal and political arguments of modern bail reform; and the ways in which all of this applies to and has played out in Indiana. It is a lot, but bail determinations run deep. In making release decisions, we are attempting to answer humanity’s oldest question, we are wrestling with Tiamat and Marduk, we are balancing individual liberty and dangerousness, we are considering nothing less than the eternal struggle between chaos and order.