February 25, 2022

Corrections Corner / Deacon Marc Kellams

Inequity is at heart of overcrowding of Indiana’s jails

Deacon Marc KellamsThe Indiana Constitution provides in Article 1, Section 16: Excessive bail shall not be required.

In Section 17: 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.

The application of this provision has varied widely from county to county.

When probable cause is found that a person has committed a criminal offense, the court can either issue a summons for the person to voluntarily appear or issue a warrant for the person’s arrest. Bail is normally set in either surety, cash or both.

A surety bond requires an arrestee to engage a bonding agent and pay 10% of the bond amount to the agent. In return, the agent guarantees to the court that the person will appear as ordered.

If the person fails to appear, the bonding agent either locates that person and secures his or her appearance or must forfeit the bond and pay the full amount of the bond to the court.

Judges often prefer surety bonds, because it is believed that a person is more likely to appear if they know there is a bonding agent who will come after them if they don’t. Counterintuitively, the research and experience show that a person is more likely to appear if released on recognizance (given the opportunity to appear voluntarily). This is especially true in misdemeanor and lesser felony offenses.

Other options include allowing the person to post the entire amount of the bond in cash; something they are generally unable to do, or the court may allow them to post 10% of the bond in cash and guarantee the remainder by pledging property; an action most often taken by a family member.

There is the same understanding that if the person fails to appear the bond is forfeited. This is often preferred as the cash bond posted is returned if the case is ultimately dismissed, or it is applied to court costs and fees if the person is convicted.

Each county handles bail differently. Amounts of bail vary widely. Many have standard bail schedules so that a person who is arrested can immediately post the bail established for the most serious offense for which they are arrested.

In some counties, the person must wait in jail and be brought before a judge the next business day for a bond hearing where the bail amount is set.

The jails are overcrowded. Most individuals in them are awaiting trial or sentencing. Some are serving sentences.

If a person is arrested and has money, they post bail and are released. If they have insufficient funds to post their bail, they sit and wait for their case to be processed.

It is this inherent inequity that has kept poor people in jail while awaiting disposition of their cases. Next month, we’ll discuss what Indiana is doing to address this issue.

(Deacon Marc Kellams is the Coordinator of Corrections Ministry for the Archdiocese of Indianapolis. He can be reached at mkellams@archindy.org or call 317-592-4012.) †

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