Rule 26: Porter County pilot success
Lake County preparing to adopt risk-assessment program to decide on jail or release before trial
Wenunah K. Barlow was arrested on July 23 and charged with possession of a syringe. Her bond reduction hearing wasn’t until July 31, so she spent eight days in jail, her attorney said.
Barlow was arrested on Interstate 90 in Lake County and she faced a level six felony charge, said her attorney, Casey McCloskey. She was released after her bond reduction hearing, he said.
Under a state mandate, which Lake County is working to implement and Porter County follows, Barlow might have qualified for a pretrial risk-assessment that would’ve given her the opportunity to reduce and pay her bond within 24 hours of being arrested — and spend less time in jail before trial.
McCloskey said he needs more information about Lake County’s plan to comply with the state’s Criminal Rule 26, which relates to pretrial release, but learning more about his clients through a risk-assessment would be helpful.
“A risk-assessment is a good thing. Just because you are indigent doesn’t mean you should be sitting in jail,” McCloskey said.
Criminal Rule 26
Criminal Rule 26 was adopted by the Indiana Supreme Court in 2017, and advises Indiana courts to “utilize the results of an evidence-based risk assessment” when “determining whether an arrestee presents a substantial risk of flight or danger to self or other persons or to the public,” according to the state’s pretrial practices manual.
“(Criminal Rule 26) was the result of two separate initiatives surrounding best-practices in criminal justice that began to focus directly on the pretrial process,” said Mary Kay Hudson, executive director of the Indiana Office of Court Services.
A pilot program began in 2016 with 11 counties volunteering, including Porter, Hamilton and Allen counties, according to the manual.
“Criminal Rule 26 is really focused on use of pretrial risk assessment in making release and supervision decisions,” Hudson said.
Rule 26 requires collaboration between local criminal justice entities, Hudson said. It has the potential to decrease jail populations, but it varies from county to county, she said.
“The impact of using risk assessment to inform release decisions at the pretrial stage will vary from county to county, and that is in large part attributable to either what their practices are currently … or the extent to which they make changes to their current practices under Criminal Rule 26,” Hudson said.
Risk assessments and Rule 26 does not replace a judge’s discretion, Hudson.
“It is designed to be additional information to inform the court’s decision. The judge always retains discretion,” Hudson said.
All counties in the state have to implement Rule 26 by Jan. 1, Hudson said.
Porter County
Porter County, one of the pilot counties, implemented Rule 26 in March 2017, said Porter County Pretrial Services Supervisor Doug Lang.
There, pretrial release assessments are available for all charges except murder and treason, Lang said.
The assessment is shared to all parties involved in the case, including the judge, and a few hours later the person charged will go before a judge, Lang said.
Typically, the assessment and an initial hearing happen within 24 hours during weekdays and within 72 hours if someone is arrested over the weekend, Lang said.
To implement Rule 26, Porter County uses two assessors and one jail officer, Lang said. The assessors and officer are paid for through a grant the county received as a pilot county, he said.
Additionally, Porter County has three pretrial officers and one supervisor that supervise those on pretrial release, Lang said.
Porter County has seen a correlation between implementing the rule and a decrease in jail population, Lang said.
“We’re keeping the right people in jail that should be in jail,” Lang said.
Currently, the county is collecting data on how Rule 26 has affected the jail population, Lang said. Though he declined to share specific numbers, Lang said Porter County has seen its lowest jail population in more than 15 years.
“If you could imagine a jail reduction of well over 100 people in a year, you could imagine the costcutting savings just in food and standard utilities and stuff like that,” Lang said.
While some people on pretrial release in Porter County don’t come to court, that number is on trend with national numbers, which is less than 3%, Lang said.
Implementing the rule is a “therapeutic change,” Lang said. It doesn’t make sense to punish an arrestee “at the front end” if he or she has not been found guilty of the crime, he said.
“We have not yet encountered, since our implementation, any roadblock or anything that would tell us that we need to turn around,” Lang said.
Lake County
Lake County Superior Court Judge Julie Cantrell has attended recent Lake County Council meetings to inform the council about the rule and the need to hire more staff to implement the state mandate.
Cantrell proposed new staffing options for when the change happens on Jan. 1 that includes either four full-time or six part-time risk assessors; either one full-time or five part-time bail commissioners; either one full-time or five parttime county division public defenders.
After meeting with Lake County judges Thursday, Cantrell said the group agreed to work with The Bail Project, a nonprofit organization that pays bail for low-income people and offer them other support.
Current pretrial jail times average about 48 hours to 72 hours in the county division and about one week in the felony division, Cantrell said.
After speaking with the other judges, Cantrell said they are leaning toward implementing Rule 26 for people charged with any misdemeanor and level six felonies in the county division and level five and level six felonies in the criminal division.
For example, Barlow, charged with a level six felony for possession of a syringe, would qualify for a pretrial assessment.
“We have to see how it plays out,” Cantrell said. “This is a total change of mindset for all of us.”