Welcome to Politically Speaking.

I'm Elizabeth Bennion Chancellor's Professor of political science and director of Community Engagement and the American Democracy Project at Indiana University, South Bend.

A new amendment has been proposed to the Indiana State Constitution.

It would limit the right to bail for Hoosiers across the state, giving judges more leeway to deny bail for those awaiting trial.

Joining us today to discuss Senate joint Resolution number one are St. Joseph County prosecutor Kenneth Cotter, Elkhart County prosecutor Vicki Becker, and Monica Smith, associate director of the Beyond Jail Initiative at the Vera Institute of Justice.

Thank you all for joining us.

I want to start with you, Prosecutor Cotter.

How would the proposed amendment affect the start to the state constitution, affect the way that the justice system approaches bail and pretrial release?

Well, it really this isn't the first impact on the effect of bail and pretrial release that actually started in 2018.

We started on the front end.

We started on the issue of maybe too many people are being held because they can't afford bail.

That's the first part.

And it's done pretty well.

Criminal Rule 26.

We've had a vast change in a lot of people who were otherwise poor and couldn't afford bond.

Just being released.

And we're talking about low level crimes.

We're talking about nonviolent crimes.

What we're trying to do is detain the people that should be detained.

Those who are a danger to the community, those who are impacting everyone else in our community, not just because we think so, but because there's something that has occurred.

So this change in the Constitution would allow the courts to do the flip side, finding those who are a danger to the community, holding them until that case is resolved.

Now, Miss Smith, the language of the bill, it does require four charges other than murder or treason.

The proof is evident, or the presumption strong in the state proves by clear convincing evidence that no released conditions will reasonably protect the safety of any other person or the community.

Is that language strong enough to guarantee you that folks who aren't a danger won't be denied bail?

Nonetheless?

I think it's certainly stronger than the first iteration of a Senate joint resolution, one which did not make an attempt to put those due process protections into into the language of the amendment.

However, we do still have concerns about that language because, again, this you know, the presumption is great or clear and convincing evidence that they may be a harm to another person that is also subject to individual judicial determinations.

And so what one judge may think is clear and convincing evidence, another one may say, I need to hear a little bit more.

And so, you know, I think about this anecdotally.

I used to practice in Baton Rouge, and there is this thing where judges, if the LSU Football Tigers would lose on Saturday, set higher bail amounts for folks on Monday.

And so they're human, too.

And so, you know, given that Senate Joint Resolution 1 makes any one, you know, has the possibility of being held on without bail in the state of Indiana, we feel as though even with that improved language is still just not enough protection to prevent folks who who are not really is a public safety threat from being held without bail.

Yes.

Prosecutor Becker, I wonder about that vague language and the fact that it does open it up to people accused of a wide range of offenses.

So, for example, if there was a judge and a defendant was charged with something like public intoxication and that judge says, wow, we don't know what somebody will do when they're impaired, I think this person has an addiction and they may be a danger to the public.

Could that person have bail denied or do you share that concern?

Well, there are always some very significant outliers to what normally happens.

You know, for example, with a public intoxication, generally, the nature of that crime is not something that would raise all of these concerns for denying any kind of bail.

But if the judicial officer with all of the information that is available to him or her finds out that there is so much more to the story, then they do have the discretion to make those decisions to raise that bail.

Or, for example, if the person was already on bond for some other offense and continued to commit criminal offenses, the judicial officer has the discretion to take those things into consideration and then deny bail if it is necessary.

It's hard pressed to think that a public intoxication would get to that level, but stranger things have happened.

You know, you can not foresee all of the different scenarios that play out in our courts every day.

And when you look at what the judicial officers are bound to consider for purposes of determining bail, there are multiple factors.

And they just have to do the best that they can with all the tools in their toolbox.

Having this amendment makes the the communication, the consistency much more reliable, because right now it's all over the board.

Prosecutor Cotter, can't judges already denied bail to somebody who they think is a serious threat to the public safety or to an individual?

Why would this kind of amendment be needed?

No, they can't, pure and simple.

The Constitution specifically says at this point, the only two crimes that you can deny bail are for murder and treason.

And we don't really have treason in Indiana anymore.

So it's it's only murder.

So there are times where it's appropriate.

And adding on to what prosecutor Becker was talking about, remember, there's a two prong analysis that this constitutional amendment discusses.

First is that the presumption has to be strong.

The second is the state has to prove that there are no conditions that would make people safe if you release them and that's a pretty high burden that we have.

And I agree that we have to be careful and we have to be deliberate in our analysis.

Our request to the court and the court has to do the same thing.

But those tethers on the court ensuring that this is a deliberate evaluation are pretty strong.

Can you say more about what it means to say the presumption must be strong and what kind of other conditions one might impose to protect the public instead of the denial of bail?

Yeah, Indiana didn't just like pull those words out of thin air.

It's used in 22 other states already.

So there's a lot of history of what the courts look at in trying to determine whether or not that presumption is strong.

But it means basically what it sounds like, that this isn't kind of a close call, that that it is basically overwhelming that this person is a danger to the community.

And no other conditions can be set to keep the community safe except to keep the person detained.

Prosecutor Becker, I see you now adding.

Yes.

And you know, the things that are coming to my mind is Prosecutor Cotter is speaking.

For example, a person who is just habitually abusive in a domestic relationship, even putting on them them on an electric electronic monitor cannot stop them from carrying out whatever is in their mind.

You know, one of the things that we've seen post COVID is the number of domestic violence that results in homicide even when they are on bond or awaiting trial on their underlying cases.

And that's concerning because just because you have a monitor on doesn't mean that law enforcement, law enforcement can be there right there to stop the crime from happening.

So what is the difference?

If somebody is accused of domestic violence, they're presumed innocent?

Would a judge be looking at prior convictions?

How would they make that determination, given that presumption of innocence in this particular case?

So prior convictions have nothing to do with the with what a judge can consider when they're looking at is the evidence strong because priors are not admissible for those kinds of things.

They could be considered for dangerous propensities to the community and for other people, but not as to whether the person committed that crime on that occasion.

That's prohibited.

But they could certainly a judicial officer could certainly consider if there are prior convictions, even if there are prior arrests that are pending at any given time or if the person was under supervision of a pretrial release program or something like that, when they are determining whether or not bail can be sufficient to protect the community or a specific person.

Ms. Smith there are some folks who argue that occasionally, particularly in domestic relationships and close personal relationships, there are sometimes people who are upset and may make false allegations, maybe multiple allegations.

Is this a concern for that person being deemed a danger?

I mean, how do you see that balance of protection of people who may be innocent and their constitutional rights with the desire to protect those who may have been battered?

Sure.

So I think that's why it is important to, you know, take a step back from from from all of this and say, you know, are there laws on the book in Indiana that can accomplish what SJR1 would do?

And I would argue that there are there are and under Indiana law, judges can set bail amounts that are higher than what they know will be affordable for that person if they believe that that person is a threat to another person or a dangerous person.

So they can already set, you know, extremely high bails, which are essentially detention bonds because those people cannot afford that amount of money.

They can't come up with it.

But in cases of domestic violence, I think that's why it's really important that every person be entitled to, you know, what I would call a constitutional bail hearing.

That means that they're brought in for court.

They have counsel to represent them, the prosecutors.

That's what their case is.

Their attorney is able to make arguments why they think they should be released from jail.

And then the judge makes a determination on the record that that clear and convincing standard has been met, that no other set of conditions or or pretrial specification could be put in place to allow that person to safely remain in the community.

But that's not really what happens.

What happens is that people, you know, are brought before a judge.

Some courthouses, they do it on closed circuit television.

They may or may not have an attorney.

In Indiana, only 10 to 12 counties have at least one full time public defender available to folks who are accused of crimes and presumed innocent.

And so in those places, those bail hearings are not like what we see on law and order, those initial appearances, but they can last minutes, you know, And so it's a very quick determination.

And the judge usually just says, you know, we'll ask the prosecutor, what do you recommend for bail amount?

And then they set that amount, whether it's unaffordable to that person or not.

That is just the number that they receive that day.

And so, you know, if the system was working, if we were having these strong, robust, constitutionally sound bail hearings, then, you know, SJR1 one may not even be needed because every defendant will be entitled to have those, because those are the specific facts of their cases taken into consideration.

But that's just really not what's happening in practice.

So you're concerned that some innocent people may be caught up and detained for a long period of time until they go to jail?

Right.

I mean, everyone is presumed innocent until they're convicted, until they enter into a guilty plea.

And so, you know, what usually happens is that people who cannot afford their free will are the ones who suffer, lose their jobs and remain in jail until their day in court or until they enter a guilty plea in exchange for their freedom.

And so certainly in cases of domestic violence, but, you know, there can be all sorts of cases.

You can think of cases where, you know, all armed robberies are not the same.

There could be a case where there's a person, a clear video.

You know, they're apprehended by police as they as they walk out the door.

There could be another instance of where the person kind of matches description.

And maybe they have the same color car as the person who committed the offense.

And so, you know, courts need to be able to weigh both of those cases.

They need to be able to say, you know, for the one word, it seems pretty clear the evidence is strong against that person.

I can set that bail them out at $50,000 for the other person.

Maybe they would consider just to bail them out at $5,000.

But the way the bail or initial hearings are happening right now, it's more of like a cattle call.

So people aren't really given the opportunity to have counsel present or to to dispute the bail, the initial bail determination.

Let's follow up on one point you made about setting bail too high for a person to pay in order to prevent their release.

In what way is that preferable to simply preventing release?

It seems in a way like so much gamesmanship.

I mean, I think it is gamesmanship, but I think it, you know, to change the constitution, the Indian constitution was ratified in 1851.

And so to me, that seems like such a drastic step.

You know, every time we want to change the bail out, does that mean we'll go back in and change the Constitution?

And so, you know, you start with these erosions of our fundamental rights that we can think about, you know, what what would come next.

And so I think it's just a really slippery slope to tweak our bail.

A bail our bail system through constitutional amendments when these same goals could be achieved through legislative process and through compromise.

And so that's one thing that that is a major concern and why we think that this is just a drastic step.

And so, you know, there really wouldn't be that much difference between a person who was held without bail or a person who was held on an unaffordable bail.

The only difference really is that the person who was held on an unaffordable bail has the possibility of release.

So if you you know, maybe you were held on public intoxication, $1,000 bail and you don't have $1,000.

So you would be held in jail until until a resolution of your case.

But if you have family members who can get you into the treatment program, then they can go back to the judge with your attorney and say, Judge, we've secured this person a treatment bed.

Will you release them?

Will you lift the bail or will you allow them to be released to their family member or on their own recognizance so they can go to treatment?

But people who are held without bail, they don't have that possibility.

There is no way that they can regain their pretrial liberty until their case is over.

And so that's why that's a major concern.

There is no release valve.

And we know that Indiana jails are quite full of people who are convicted and unable to pay their their bail amounts, which you or I may consider to be low.

But they're a lot of money for those families and individuals.

Prosecutor Cotter you started by saying that the movement in recent years has been in some ways in the opposite direction to make sure that people were not being detained simply because they can't afford to post bail and allowing them to remain free until they have that trial date.

Are you concerned that this could be a problem that moves some of those people?

Like reverses the progress that's been made in that area for people who don't pose a danger?

No, I think it makes it actually stronger.

And the reason I think it's stronger is because if the court doesn't have to do that fiction of, oh, I'm going to try to figure out a bond that's high enough, that's going to keep them detained.

But I don't want to run afoul of the the Supreme Court and the Constitution instead of just being true and saying, you know what?

You're not a danger to the community.

You're going to come back to court.

No, but you don't have to worry about posting bond be released on your own recognizance.

And on the flip side, then, oh, this person is a danger.

And it's not just a guess on our part.

I have cases in which charged a person.

They've been convicted, they've gone to prison, they got out, they committed another crime to the same victim, charged them.

They got bond.

And the next time they shot and almost killed his spouse.

It's a real thing.

And the court had to follow what the Constitution required and said, you're going to get bond, even though there's pretty strong evidence that this person is just going to do it again and again and again.

So I don't think it's reversing the opportunities to release poor folks, because that's a lot of what was happening.

I think it strengthens it exponentially strengthens it because you feel more confident doing that, because you have that discretion and know that you can detain those who are a threat.

Let's not worry about bond.

Let's worry about danger to the community or not.

If remember, we're not we don't just charge it on our own.

The court looks at every case that we file a charge and finds probable cause.

So there is something there.

I agree that there are innocent people that we have charged and they have been found not guilty.

And and we go through that process.

But there are it's not just on a whim.

This is a well thought out reasons why not only charges are filed, the judge sets that bond.

But in this case, the judge is now doing a second analysis.

Is it strong?

And are there no other conditions that can keep our community safe?

Only then would you detain.

So I actually think we're going to have fewer people in jail, not more people in jail.

Prosecutor Becker, would you concur and what role, if any, does the prosecutor play in recommending for or against bail in these cases?

So our main goal, I mean, hands down, I think all of our main goal is to ensure the right people are detained for the right reason, for the right amount of time.

I mean, I think we could probably all agree on that because no one wants our communities to be in danger.

No one wants innocent people to be injured by someone who is already showing a significant propensity for violence.

But all that being said, the role of the prosecutor is to have a deeper understanding of the facts and circumstances of every given case that comes across our desk.

So we are in a unique position such that we can identify or argue certain factors that really are objectively concerning.

There's so many different tools out there that many of us use for pretrial detention to considerations, danger to the community.

There are lethality surveys that are very well validated and utilized around the state for, for example, domestic violence.

And those are evidenced based.

And so when we're asking those questions and digging into the facts and circumstances of every single case within the framework of those questions, we know that it's not just a subjective decision.

It's actually based upon things that science knows are predictors of future criminal behavior.

So we look at that and then we can provide that information to the judicial officer, and then they have the opportunity to make those decisions as prosecutor Cotter was saying.

This process actually has more of a likelihood of making this entire process more intentional, which is kind of what, you know, has been discussed so far.

Our goal is to make informed and intelligent decisions, not just rubberstamp things.

That's not the purpose.

But we also have to understand it goes to the full range of the spectrum.

And criminal offenses are being committed by people who are very low risk and also very, very high risk.

So we've got to make sure that we're looking at these in the context in which they're meant to be looked at to make those informed decisions.

So I really want to hone in on this idea of only jailing folks who who have been deemed dangerous and who, you know, have lost their right to exist in society with, you know, the rest of us.

That I think a good example of this and how the system of preventive detention has done all of these things we're talking about achieving is is New Jersey.

So in New Jersey, they passed their constitutional amendment to allow for preventative detention in 2014.

They took three years to kind of get their court system all aligned to put pretrial services in place.

And then in 2017, they started January 1st, 2017, they started having this system of preventive detention, but they don't have just preventative detention.

They have a very.

They also eliminated money bail at simultaneously, which means that unless you're charged with one of these enumerated violent felonies, you're not even eligible for cash bail.

And so, of course, their jail pretrial jail population drastically decreased.

But also, what happened was that that made way for courts and judges to have these meaningful bail hearings.

They call them detention hearings.

That and that's when everyone comes together.

They have counsel and they made their case for why this person has lost their right to remain in the community.

And even with that, in the first 6 to 9 months of that program way back in 2017, now judges only detained without the possibility, about 12% of those folks who even face that hearing.

And so, again, you know, it just goes to show that if we if we really want to be intentional, I think SJR1 could be crafted to eliminate the possibility to prevent predicted for anyone who's arrested and follow the lead of other states like Ohio, which have what's called a limited detention net, which means only people who are charged with mostly violent felonies or felony offenses altogether can be held without bail.

And I think that would be a better way to get at what we're all saying, which is really to release the people that should be released and to hold the people that shouldn't.

I wonder what your response is to that Prosecutor Cotter, if we want to achieve this balance, should there be additional language or more specific language within the amendment to indicate what types of people maybe broadening it but not opening it up completely?

Why do should the lowest level people can convicted of that, not convicted, but accused of the lowest level offenses potentially be deemed a danger?

Well, it's two parts.

The first part is the the determination.

If this passes isn't the charge.

It's whether they are a danger to the community.

So a charge that traditionally wouldn't be looked at as violent may very well been committed by somebody who is violent.

Best example I can think of is residential entry.

It is not considered to be a violent act.

And I got to tell you, my family, somebody breaks into my house.

I think they would disagree with that determination.

So that allow all it's doing all this is doing is allowing a judge to make those learned determinations.

So basically, on the crime itself, there are people who have committed what have been deemed a violent crime that you wouldn't consider to be so violent, that we have to be worried about never releasing them.

So it goes on both ways.

It's not just let's detain more people.

And I respect and I agree that we have to be very deliberate whenever we're talking about impinging on a person's constitutional right to be free.

But by the same token, we all have that right to be free from the worry of harm.

Now, we've seen the Republican legislators on this show are more likely to support this particular amendment than Democratic legislators.

But it's not a clear party design here, a Democratic and Republican prosecutor.

It sounds like this is not breaking down neatly along party lines in the state of Indiana.

That would be spot on.

I don't necessarily think that just because of whatever side you want to sit on or identify with from your political perspective that you're going to agree or disagree.

You know, we are very far apart on our ideology, but yet those are the healthy conversations that we have.

And I fully respect Mr. Carter's opinion on all of these things, and it helps me make more informed decisions as well.

So honestly, I don't think that the the party side of things really is the defining factor on this topic.

And last word, because we're out of time.

Sorry.

I just want to add that I have been an attorney for 15 years.

I've always worked on the side of the defense and criminal law.

And this is the first time that I have ever found myself as a member of Vera Institute of Justice that have been equally as concerned as members of the National Rifle Association and the National Bail Coalition and the ACLU.

All of us express, have expressed concerns about Senate Joint Resolution and the fact that it would have upon Hoosiers so, you know, unlikely bedfellows in this case.

Right.

So on both sides of this issue, politics makes strange bedfellows.

Exactly.

Right.

Alright.

Well, that's all the time we have for this episode of Politically Speaking.

I want to thank our guests, St. Joseph County Prosecutor Ken Cotter, Elkhart County Prosecutor Vicky Becker, and Monica Smith, Associate Director of the Beyond Jail Initiative at the Vera Institute of Justice.

I'm Elizabeth Bennion, reminding you that it takes all of us to make democracy work.

We'll see you next.

This WNIT local production has been made possible in part by viewers like you.

Thank you.