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FOR IMMEDIATE RELEASE:
Press Contact: Sarah Edwards, Press Manager, media@bailproject.org

Proposed resolution to amend the state constitution headed to the full Senate for debate stands to expand preventive detention without protecting the individual rights of the accused or limiting the use of cash bail.

(INDIANAPOLIS, IN) – In response to the passage of SJR 1 through the Senate Corrections and Criminal Law committee, The Bail Project issued the following response:

“The Bail Project opposes Indiana SJR 1. As the U.S. Supreme Court emphasizes in US v. Salerno: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Although Indiana SRJ 1 is correct to take issue with the use of cash bail as a mechanism to detain rather than incentivize return to court, it does not establish proper procedural safeguards to limit overreliance on preventative detention without proper justification. Without accompanying revisions to Indiana law, the proposed resolution will undermine the individual right to pretrial liberty, erode due process, and likely lead to an increase in unnecessary incarceration.”

Additional background information

Indiana is a qualified right-to-bail state, meaning that, anyone charged with any crime except murder or treason, will have bail set against them. Prior to 1996, bail was only used to address concerns about non-appearance. In 1996, the Indiana General Assembly enacted IC 35-33-8-1 and 4, which allowed the judge to consider public safety when setting amounts and conditions of bail as long as there was clear and convincing evidence.

Presently, there are a variety of existing statutes and a judicial rule (Rule 26) that govern the bail setting process, including provisions that relate to: a) the utilization of conditions of release (IC 35-33-8-3.2); b) the circumstances where there should be a presumption of release and c) the utilization and application of a risk assessment tool for bail setting (IC 35-33-8-3.8). Taken together, Indiana currently has a robust series of statutes to ensure that risk of flight and public safety are considered under the law and prior to any bail setting.

The issue, however, is that the state does not currently allow for the utilization of preventive detention in any instance. Where preventative detention is not permissible by law, judges often take matters into their own hands and set bail excessively, which makes cash bail a proxy for de facto detention. This has resulted in nearly a dozen lawsuits where the state supreme court has offered differing opinions on what constitutes “excessive bail.” The lack of statutory clarity on excessive bail therefore means that the state will remain vulnerable to a variety of lawsuits. The amendment proposed with SJR 1 would remedy this liability, and potentially mitigate the use of excessive bail as a proxy for preventative detention.

However, the proposed resolution alone is insufficient. It is not accompanied by revisions to Indiana law governing the pretrial decision-making process and therefore the entire process of preventative detention would be subject to interpretation and potentially misuse and overuse. At present, and even if this resolution passes the General Assembly, neither the state nor the judiciary offer direction on how to make a determination to preventatively detain someone who is charged with murder or treason (which leaves one to assume that the default is to preventatively detain anyone charged with one of those crimes that fall within this now expanded list).

Following the near-silent process on preventative detention for these most serious charges, the proposed resolution also provides no instruction, establishes no due process protections, nor does it offer any rigorous guidelines that judges would be required to follow before detaining someone who represents a “public safety risk” of any sort. It is therefore insufficient to establish this type of constitutional change without simultaneously offering the limiting factors and rigorous procedural guidelines that must be required to ensure that the state is not in violation of US v. Salerno, which requires that preventative detention be the “carefully limited exception.” The absence of due process protection or rigorous processes that require judges to use the least restrictive conditions necessary, to establish evidentiary thresholds for the evidence of public safety risk, and to establish rigorous processes for detention hearings means that the resolution will increase the states reliance on pretrial incarceration instead of alternatives.

About The Bail Project

The Bail Project is a national nonprofit that provides free bail assistance and pretrial support to thousands of low-income people every year, while advancing policy change at the local, state and national level. It is on a mission to combat mass incarceration by eliminating reliance on cash bail and demonstrating that a more humane, equitable, and effective pretrial system is possible. Learn more about The Bail Project at bailproject.org. Read our policy roadmap at aftercashbail.org.

(December 14, 2022) LOS ANGELES – Today, The Bail Project announced the appointment of Erin George as its new National Director of Policy.

“We are excited to welcome Erin George to The Bail Project. Over the past five years, through our direct services in more than two dozen jurisdictions across America, we have built a powerful body of evidence that cash bail is not necessary. We have also begun codifying a model of community release that offers a viable alternative to cash bail,” said The Bail Project’s CEO Robin Steinberg. “Erin and her team will build on this work to pursue policy changes and shift local pretrial practices. I know she will lead with passion, experience and deep respect for the work on the ground, and we are thrilled to have her.”

George brings over a decade of experience in political advocacy, organizing, and coalition-building to The Bail Project. She has worked on a broad array of criminal justice issues including drug policy reform, pretrial justice, police accountability, record expungement, and the campaign to close the Rikers Island jail in New York City. George joins The Bail Project from the Clean Slate Initiative where she served as National Campaign Manager.

“I have seen first-hand the harms of unaffordable bail and pretrial detention and understand the importance of structural reform to eliminate these injustices,” said George “I am thrilled to be joining The Bail Project, an organization laser-focused on advancing pretrial liberty, and to continue growing this essential advocacy work.”

A graduate of Columbia University School of Social Work, George began her career as a social worker for several years, before transitioning into the policy space through various advocacy and campaign organizing roles at Citizen Action New York, JustLeadershipUSA, New York Lawyers for the Public Interest, and the Drug Policy Alliance.

As National Director of Policy, George will lead The Bail Project’s strategy to use its distinctive expertise and data to support policy/advocacy efforts at the local, state, and federal levels.

Today, Ohioans vote on a ballot measure that would amend the state’s constitution and change how bail is set for people awaiting trial. This measure, Issue 1, seeks to reverse the Ohio Supreme Court ruling in Dubose v. McGuffey, which emphasized the prohibition against excessive bail that is enshrined in both the U.S. Constitution and the Ohio Constitution.

Issue 1 is being presented to voters under the guise of public safety. Unfortunately, the rationale behind the proposal is deeply misguided.

There is no question that public safety must be a top priority for government. Everyone deserves to feel safe. Issue 1, however, is not an improvement over the status quo – quite the opposite. Judges in Ohio already consider public safety when determining pretrial release and can deny bail altogether if they deem so necessary. The proposed constitutional amendment would turn that critical safety consideration into a crude cash bail calculation, making money a proxy for who goes free while awaiting trial.

A court’s decisions about pretrial release and detention should be based on evidence and law, not a person’s finances. Using money bail to guide who is jailed and who goes free while their case is pending, puts a price tag on the presumption of innocence, the bedrock of the American legal system. It doesn’t make us any safer: Those with money still get out, even if they pose a danger to others, while those who are poor remain detained, even if they were innocent all along. To enhance public safety, we must take money out of the equation. Judges should exercise their discretion based on the available evidence while strictly adhering to the procedural protections afforded to all by the U.S. Constitution.

For meaningful improvement, it is wiser to look at HB 315, a bipartisan bill before the legislature this fall.

HB 315 addresses the important need for bail decisions to be crafted with individual circumstances and goals in mind. The bill preserves judicial discretion to detain people in cases where public safety risks are properly identified. In cases where release is approved on condition of bail, the bill directs judges to take a person’s ability to pay into consideration. This would dramatically reduce the number of people held in jail simply because they are poor. By balancing these two elements, HB 315 ensures pretrial outcomes are driven by concrete public safety factors rather than whoever happens to have the resources to pay inflated cash bail amounts.

The pathway outlined in HB 315 is far more robust and comprehensive than Issue 1, and it actually addresses real public safety needs. A broad, bipartisan group of lawmakers and community stakeholders worked together to develop the carefully tuned approach in HB 315 because they recognized that Ohio needs a thorough, considered approach to pretrial law – not a knee-jerk reaction that doubles down on the status quo.

Ohio’s existing system of pretrial detention costs $67 to $87 per person per day. That adds up to a price tag of $300-400 million each year for Ohio taxpayers. For that price, the state gets a system that is neither effective nor fair. The wealth-based detention that results from excessive bail amounts falls most heavily on Black and low-income Ohioans. Black Americans make up 13% of the Ohio population but 34% of those in the state’s jails.

Significantly, the current bail system doesn’t effectively promote public safety. The solution to this isn’t to dig deeper into the status quo by approving a new constitutional amendment that further relies on the broken tools currently in place, but rather to inject comprehensive, common sense improvements through HB 315.

The promotion of public safety is one of the most important roles of government, and every community has the right to protect something so vital. While Issue 1 is being sold as an enhancement of public safety, all it does is further entrench existing problems while giving wealth even more power to dictate criminal justice outcomes.

Public safety is eroded when money wins the day over thorough consideration of evidence and individual cases. Issue 1 ignores a better pretrial system available to Ohioans. A strong bipartisan effort like HB 315 is crafted to produce real results, real improvements to make the system smarter, safer, and more fair. HB 315 is the solution that voters want and need.

Ohio residents should vote “No” on Issue 1 and support the bipartisan, common-sense reforms in HB 315. That way, we can leave public safety decisions to judges, not each person’s bank account.

Josh Mitman is a Policy Counsel at The Bail Project.

The Bail Project opposes the use of pretrial algorithms to help decide whether an individual is incarcerated pretrial. Together, with data scientists and legal scholars, we argue that pretrial algorithms, also known as risk assessment tools, disproportionately harm people of color, oversimplify complex individual and case outcomes, undermine standards of procedural justice, and rely on data that is inaccurate, outdated, and unreliable.

The Bail Project opposes the use of pretrial algorithms to help decide whether an individual is incarcerated pretrial. Together, with data scientists and legal scholars, we argue that pretrial algorithms, also known as risk assessment tools, disproportionately harm people of color, oversimplify complex individual and case outcomes, undermine standards of procedural justice, and rely on data that is inaccurate, outdated, and unreliable.

From CNBC: “When someone finds themselves in jail, they can often gain their freedom while they await trial by posting bail. But even small bails amounting to just $500 or $1,000 can prove unaffordable for many. In fact, 40% of Americans say they could not afford an unexpected $400 expense, according to the Federal Reserve.”