This is the penultimate installment in the Making Bail series. You can find links to the prior installments here.
AS NOTED in the previous installment in this series, a good marker for the beginning of the most recent bail reform effort is the second term of the Obama Administration. The Obama Department of Justice had the specific strategy of influencing states, particularly state judiciaries, to implement bail reform. To this end, the Administration used the Department of Justice’s National Institute of Justice to advocate for bail reform and to train “judicial actors.” This effort had tremendous impact across the country, and those efforts have persisted well past President Obama’s time in office.
Many states have adopted bail reform, both through their courts and through their legislatures. In 2019, New York City eliminated cash bail for most offenses. Last year, Illinois became the first state to eliminate cash bail for all offenses. Indiana, though traditionally a conservative state and generally lagging in political reform efforts, also embraced bail reform. Consistent with the aims of the Obama Administration, it was the Indiana Courts that led the way on bail reform.
The Indiana Supreme Court began exploring bail reform in 2013. By 2016, the Court issued Criminal Rule 26 regarding bail. The Rule requires that courts consider a pre-trial risk assessment instrument prior to making a bail decision. It also creates a presumption in favor of release without “money bail” unless the court finds a substantial risk of flight or danger. It is important to understand that Indiana’s new bail rule was promulgated amid the fervor of the most recent bail reform political movement. Even though Indiana’s Criminal Rule 26 specifically mentions dangerousness as a factor a judge should consider, the Indiana Supreme Court in issuing the Rule was widely understood to be encouraging pre-trial release. Reinforcing this notion, Indiana’s court-driven reform placed great emphasis on a new pre-trial risk assessment tool that screens only for likelihood of reappearance, not dangerousness. Thus, many judges responded by downplaying dangerousness in their bail decisions.
The best example of this is the Indiana Court of Appeals case, Yeager v. State. In 2019, John Yeager battered his girlfriend’s two-year old son. He was arrested and charged with level 3 felony aggravated battery. The trial judge considered the risk assessment tool and set a bail bond in the amount of $250,000. Yeager moved for a bond reduction. During the bond hearing, Yeager presented that he had little criminal history, that he had ties to the community, was working, and that he agreed to a no-contact order. His pre-trial release assessment tool found him to be low risk for failure to reappear at court. The trial judge denied Yeager’s request to reduce his bond. In doing so, the judge found that the nature and gravity of the alleged offense was serious, that Yeager faced up to 32 years in prison, and that the judge was not “confident public safety could be reasonably assured if Yeager’s bail were to be reduced.” Yeager appealed this decision.
The Indiana Court of Appeals took up Yeager’s case and ordered him released. The Appellate Court cited Indiana Criminal Rule 26, noting that Yeager scored a low risk for failure to reappear. The Court also stated that it found “no evidence presented as to how he [Yeager] could possibly be a threat to anyone.” Yeager’s girlfriend’s two-year old son would likely disagree with this finding.
The Yeager court embraced many of the legal arguments put forth by third-wave bail reformers. First, they followed the dicta in the U.S. Supreme Court case Stack v. Boyle, which states that courts can only focus on reappearance in making bail decisions. As noted in the last installment, Stack is not good law. It was directly swatted down by a subsequent U.S. Supreme Court decision, Salerno. It is contradicted by a history of written law going back to at least the year 1275. It is also out of line with the evolutionary underpinning of the criminal justice system.
The Indiana Court of Appeals also misinterpreted the presumption of innocence, reading it to prevent courts from looking to the facts of the instant case when considering dangerousness. Again, as pointed out in the last installment, the U.S. Supreme Court has made clear that the presumption of innocence does not apply in bail determinations. It is true, however, that many Indiana Supreme Court and Court of Appeals cases perfunctorily mention the presumption of innocence in bail opinions, muddling the issue for state-level analysis. Those cases generally do not rely on the presumption in their final analysis, though, and, to the extent that they do, they are wrong. For the best Indiana analysis on this point, see Indiana Supreme Court Justice Mark Massa’s opinion in the Indiana Supreme Court case Fry v. State, where he demonstrates that the presumption of innocence does not apply to bail determinations, even through state law. Justice Massa writes, “where Indiana appellate courts have considered the interaction between the presumption of innocence and the right to bail, we have tended to agree with our federal colleagues.”
Following Indiana’s bail reform push, many courts across the state made and continue to make the same mistakes as the Yeager court, to deleterious effect. The bail reform movement is a subset of a larger soft-on-crime movement that has swept the country over the last decade. These reforms have had a negative impact, and bail reform, in particular, has played a role. Studies (see here and here) have shown that bail reform is implicated in rising crime in Chicago. Violent crime tripled in California after bail reform, according to one study. The U.S. has experienced a 25% decrease in the number of people imprisoned, a 15% decline in the number of people held in jail, and a 26% decline in the number of arrests effectuated by law enforcement officers. This would be a good thing, except that it has been accompanied by an unprecedented surge in violent crime. Indiana, too, has been negatively impacted. Indianapolis has experienced the most significant crime wave in the last 200 years.
There is hope, however. Recently, several states have begun clawing back their bail reform efforts. Indiana, too, has taken steps to reform the reform. These bright spots will be the topic of our next and final installment.