Indiana Bail and Pretrial Release

After a person is arrested by the police and charged by the State with an alleged crime, the pretrial period starts. The Judge will then decide whether the person charged with an alleged crime should be released from jail prior to the trial and on what, if any, the terms of release should be. The Court looks at two (2) main factors when they decide the issues and the terms of pretrial release: whether the person presents [1] a substantial risk of flight or [2] danger to self or others. Generally, if a person does not present a substantial risk of flight or danger to self or others, the Court is supposed to release the person without bail or surety on their own recognizance.

Bail is a guarantee provided by a person charged with an alleged crime to the Court that they will appear for all Court dates and not be a danger to their self or others, and bail is generally returned after the trial. Bail is kind of like the shopping carts at Aldi’s: you pay a quarter to guarantee Aldi’s gets their cart back, and you get your quarter back once they get their cart back. Generally, bail takes the form of money, and it can be another form of property, such as a house. Perhaps at this point you can see the issues created by pretrial release and bail. For one, people are presumed innocent until proven guilty beyond a reasonable doubt by the State, and incarceration is the most significant criminal sentence other than the death penalty for people found guilty of a crime. People sitting in jail prior to trial is basically punishing innocent people, which is wrong on many levels. For two, the amount of money each person has varies, and people who have been charged with an alleged crime often do not have much money. The bail process assumes everybody can afford bail, which is not a good assumption, and innocent people can find themselves sitting in jail because they can’t afford bail. Fortunately, the pretrial release and bail process has become more progressive lately, and Courts are strongly encouraged to release people without bail prior to trial.

People have important Constitutional rights regarding bail. The 8th Amendment to the U.S. Constitution and Article I, Section 16 of the Indiana Constitution state: “Excessive bail shall not be required.” Article I, Section 17 of the Indiana Constitution states: “Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong.” Bail has to be a reasonable amount, and pretty much every offense is bailable.

I.C. 35-33-8-4 states: “Bail may not be set higher than that amount reasonably required [1] to assure the defendant’s appearance in court or [2] to assure the physical safety of another person or the community.” The Court takes the following factors into account when setting a bail amount:

(1)  the length and character of the defendant’s residence in the community;

(2)  the defendant’s employment status and history and his ability to give bail;

(3)  the defendant’s family ties and relationships;

(4)  the defendant’s character, reputation, habits, and mental condition;

(5)  the defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring him to trial;

(6)  the defendant’s previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;

(7)  the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;

(8)  the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;

(9)  that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and

(10)  any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring him to trial.

Generally, factor (7) carries a lot of weight, and the amount of bail generally increases as the level of the alleged crime increases. Bail can be revoked and/or increased under certain circumstances, especially for failure to appear for Court. The Court can require certain conditions for pretrial release or bail, including supervision by probation, pretrial services, or other public official, reasonable restrictions on the activities, movements, associations, and residence of the defendant, no contact orders, etc.

If you have been charged with an alleged crime and have pretrial release and/or bail issues, contact me today.


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