This is the sixth installment in the Making Bail series. You can find links to previous installments here.
LIKE MOST states, Indiana’s bail laws are inspired by the Anglo-Saxon legal traditions imported at our nation’s founding. Indiana, like other states, also takes strong cues from the U.S. Constitution, U.S. Supreme Court interpretations of the Constitution, and U.S. federal statutes. As such, the state’s history on bail largely tracks the history of bail at the federal level.
Prior to becoming a state, the Indiana territory was governed by the Northwest Ordinance. The Northwest Ordinance was adopted by the U.S. Congress in 1787 to govern the territory north and west of the Ohio River. As it relates to bail, the Northwest Ordinance stated in Article II:
The Inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by Jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law; all persons shall be bailable unless for capital offenses, where the proof shall be evident, or the presumption great; all fines shall be moderate, and no cruel or unusual punishments shall be inflicted; no man shall be deprived of his liberty or property but by the judgment of his peers, or the law of the land.
This language is consistent with the First Statute of Westminster from 1275 and the 1689 English Bill of Rights that we addressed in previous installments. It is also consistent with Congress’s first act addressing bail at the federal level, the Judiciary Act of 1787, which was passed commensurate with the Northwest Ordinance. This links Indiana with bail practices dating back hundreds of years.
The Indiana territory was regulated by the Northwest Ordinance until Indiana became a state in 1816, at which time the state adopted its own constitution. The 1816 Indiana Constitution mirrored the Northwest Ordinance bail language. It states, “all persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great.” Again, consistent with historical statutes and practices. In contrast, though, with the U.S. Constitution which contains no right to bail.
The Indiana Constitution was rewritten in 1851. At that time, a convention delegate from Floyd County, Mr. Thornton, tried to amend the bail language. He opposed the death penalty and sought to delete the language that prohibited bail in capital cases. Another delegate, Mr. Gibson of Clark County, proposed eliminating the “capital offenses” language, and replacing it with “murder and treason.” Mr. Gibson’s motion carried. A debate then ensued over whether murder and treason should be bailable.
Indiana Supreme Court Justice, Mark Massa, described this debate in a dissenting opinion in Fry v. State. He wrote:
Mr. Gibson then proceeded to explain why the change proposed by Mr. Thornton was unacceptable. He called it “one of the most startling innovations that had ever been introduced in our system..that a man who was willing to pay sufficient price might commit murder with impunity.” All that man would have to do is “pay the price at which the bail was fixed and then he might quietly put up his goods and leave the country.” Mr. Thornton defended his amendment, arguing all offenses should be bailable in order to “advance the cause of personal liberty.” He then asked for a vote, and his amendment was defeated ninety votes to nine.
Thus, the 1851 Constitution’s language, as written and as described in Justice Massa’s reprinting of the Gibson and Thornton debate, is consistent with the long history and tradition of bail going back to at least 1275. The only exception to this being the explicit inclusion of the right to bail in the state Constitutional language, unlike its treatment in the U.S. Constitution. Indiana’s efforts reflect the age-old question of balancing order and chaos. As the debate on the amendment makes clear, the delegates were concerned about individual liberty, but insisted that dangerousness and justice to victims remain paramount considerations.
Like its Constitutions, Indiana statutes have been heavily influenced by developments at the federal level. Statutes in Indiana have taken twists and turns similar to federal statutes as they flapped in the political wind.
In 1966, the U.S. Congress passed the Bail Reform Act that created a presumption of pre-trial release and prohibited judges from considering dangerousness when making bail decisions. Indiana, as it often does, lagged the national movement inspiring the 1966 law. However, in 1980, the Indiana legislature passed a statute setting forth the factors a judge should weigh when considering bail. Like the 1966 federal law, the 1980 Indiana statute did not contain explicit authority for a judge to consider dangerousness as a factor. Just as the 1966 federal statute, Indiana’s 1980 bail law was out of step with centuries of bail practice, history, and tradition in ignoring dangerousness.
In response to the rise in crime after the 1960’s criminal reform at the federal level, Congress passed the 1984 Federal Bail Reform Act. This new act specifically addressed dangerousness. Similarly, if again later, Indiana passed a 1996 bail reform law reasserting the importance of dangerousness. Courts this time were given explicit authority to consider whether “a defendant poses a risk of physical danger to another person or the community.” This put Indiana back in line with historical bail practices and then current federal law.
Thus, over the last 45 years, Indiana bail statutes have undergone a couple of significant reforms mirroring national political machinations. They have also been tweaked a bit here and there in ways less dramatic than the 1980 and 1996 revisions. This has all added up to what is, quite frankly, a nearly indecipherable Indiana bail statute, replete with multiple, and sometimes conflicting, factors and burdens of proof.
Importantly, though, following the 1996 revisions, Indiana bail statutes had all the pieces present in the treatment of bail throughout history. The statutes recognized individual liberty yet insisted on dangerousness as an important consideration. They allowed a healthy, judge-determined, balance between chaos and order.
Then along came a solution in search of a problem—today’s bail reform movement. That will be the topic of the next installment.