Brown Circuit Court will have a new employee starting this year who will be responsible for assessing people who have been arrested before they can be released on a bond or on their own recognizance.
The new job is based on a new, mandatory Indiana Supreme Court rule, Criminal Rule of Procedure 26, affecting all Indiana counties as of Jan. 1. The rule governs how courts make pretrial release determinations, explained Brown Circuit Court Judge Mary Wertz.
“This new pretrial release rule requires courts to base release decisions on objective factors relevant to public safety and court appearance rather than on an ability to pay,” she said.
“Its focus is on the protection of society from those who pose a risk of danger to the community, while reducing pretrial detention of those who do not pose that risk of danger.”
Historically, pretrial release has been determined by monetary bond schedules that are based on the level of the offense. For example, prior to Jan. 1, a person arrested for a Level 6 felony would be released after posting a $2,500 bond even if the Level 6 felony was a violent offense. Under most circumstances, the person would be able to post just 10 percent of that amount, or $250, Wertz said.
“Under that system, a person arrested for a violent felony with multiple pending cases is treated the same as a person arrested for a non-violent felony who has never been arrested before,” Wertz said.
A person who is arrested for a violent felony and is on probation would also be treated the same as someone who was arrested for a non-violent felony and had never been arrested before.
Rule 26 now makes it so that anyone who is arrested and does not present “a substantial risk of flight or danger to themselves or others” is released by the court without posting bail or surety, subject to restrictions and conditions set by the court.
“It’s something that they (the Indiana Supreme Court) felt was important in terms of recognizing that this monetary bond scheme we’ve had for years really doesn’t address community safety, and really moving things forward in a more logical way,” Wertz said of the new rule.
The rule would not apply to anyone charged with murder or treason; to anyone already on a pretrial release; or anyone currently on probation, parole or other community supervision, Wertz said.
“People that are arrested on either misdemeanors or nonviolent misdemeanors and nonviolent Level 6 felonies — if they’re not on community supervision, probation, parole — then they’re probably going to be OR’d (released on their own recognizance without posting bond) unless there’s something else going on,” she said.
A new pretrial services officer would work with people who are arrested on higher level offenses or anyone already in a program, like probation. “Obviously, they’re still getting arrested, so maybe there’s a problem,” Wertz said. “It’s more focused on the people that have those higher risk factors.”
On Dec. 16, the Brown County Council approved the job description for a part-time pretrial services officer at a pay grade 12, which is $17.55 per hour this year. That officer will work between 20 and 29 hours a week and report to Chief Probation Officer Jennifer Acton.
The job will be fully funded by a $60,000 Justice Partners Addictions Response grant.
The remaining grant money will also pay for moral reconation therapy at the Brown County jail. That program is “designed to improve moral decision-making skills and to alter how participants think and make judgments about what is right and wrong,” Wertz said.
The jail previously had this program, but had lost funding for it. “The sheriff, jail commander and the participants all thought this was a very good program and I am happy that it is being offered again,” Wertz said.
Any other remaining grant money will be used to pay for training, incentives and community outreach, Wertz said.
Assessing risk
How will the court determine if someone who has been arrested is a substantial risk of flight or danger to themselves or others?
This is where the pretrial service officer comes in. That person will conduct a risk assessment on anyone who has been arrested and has not been released yet on the bond schedule, using the Indiana Risk Assessment System pretrial assessment tool. After doing the assessment, the officer will prepare and file a report to the court, Wertz said.
That report will be considered at a hearing. It will assist the court in deciding if a person should be released with or without posting bond. The court will also determine if any conditions for release should be enforced.
Conditions for release could include a substance abuse evaluation and completion of any recommendations from that evaluation, drug testing, home detention, and/or meetings with the pretrial services officer.
The officer will then be responsible for ensuring the person is following their conditions and will respond if any condition is violated.
To comply with this new rule, Wertz had to rewrite the county’s local pretrial release and bond rule to include consideration of different factors in addition to the level of offense when deciding bond amounts after an arrest.
Factors include whether the offense is violent or non-violent, and whether the person arrested is currently on pretrial release, probation, parole or other community supervision.
The new bond schedule will put more responsibility on jail officers, who will have to prescreen anyone who is arrested.
“Instead of having every Level 6 felony be one level, they are broken down into violent or nonviolent. Then also, are they on probation, parole or community supervision, or are they not?” Wertz said of the initial categories.
“If they’re not released (under those categories), that’s when the pretrial services officer comes in and does that assessment; then, we have a court hearing. … Everyone is still eligible for bonds, but the bonds are different based on those circumstances.”
For example, under this schedule, anyone arrested for a nonviolent and non-drug- or alcohol-related Level 6 felony would be released on their own recognizance without having to post a bond. For that release to happen, the person would also have to not currently be on probation, parole or any other kind of supervision, like through Community Corrections.
“If we go to nonviolent, but on they are probation, parole or pretrial supervision, then their bond is so much and they have a Level 2 supervision with (different levels of) pretrial services built in,” Wertz said.
Under the new schedule, if someone is on probation or parole and is arrested, that person’s bond would be $30,000 for a violent Level 6 felony offense. If the person is not under any kind of supervision through the court, then it would be set at $10,000 for that violent Level 6 felony arrest.
“I just want people to understand this is well thought-out. It’s individual. It’s based on risk and really looking at community safety, safety of the person, and make sure they show up for court,” she said.
Wertz said as she was writing the new local rule, she looked at “realities” here and how there are some people in the jail who don’t belong there.
“These low-level, nonviolent offenses, those folks don’t need to be in our jail. There’s studies that show even short-term incarceration for people that are employed and have families can be very detrimental to them and actually lead to greater recidivism,” she said.
“The goal I share is to really start focusing on those folks that need more attention earlier on and using our community supervision for people that can start making steps towards rehabilitation sooner rather than later.”
Wertz said this new rule will allow the court to identify those who may pose a higher risk to the community and then ultimately focus more resources on them.
“We always have to remember that everybody is presumed to be innocent,” she said.
“I fully believe that, but I think I’ve got an obligation to look towards not just their obvious rights, and they’ll have right to representation in all of these matters, but also look towards what can we do to reduce the risk to our community?”
Under this new rule, a person arrested for a drug offense could start receiving treatment for addiction if the pretrial service officer’s assessment shows there is a need for that.
“It’s going to be more individualized and looking at that person, not just a class of people. It’s not going to be a cookie-cutter approach,” Wertz said.
Before being elected judge, Wertz worked as the deputy prosecutor in Bartholomew County where she prosecuted various felony crimes.
She also served on the pretrial service committee there, since Bartholomew County was one of the 11 counties that volunteered to be pilots for the rule when it was adopted in 2016. “I’ve looked at all of those different (pilot county) systems and tried to take the parts of those that I think work best in our community,” she said.
“I’ve noticed that in some communities there’s this thought of, ‘Well, everybody gets out.’ That’s not what the rule says, nor how it’s going to work here in Brown County.”
“It’s not that everybody gets out (of jail under this rule) …. It’s presumption of innocence, risk-based (assessments).”
Wertz worked with Sheriff Scott Southerland, Jail Commander Tony Sciscoe, Prosecutor Ted Adams and local defense attorneys on creating the new local rules and schedules to comply with Rule 26.
The job of part-time pretrial services officer has not been filled yet. Wertz said it will take a “special person” who is willing to accept that it is part-time and currently grant funded.
Wertz said she will continue to look for ways in the future to fund the job using grants, but if no grants can be secured for 2021 and beyond, the county would have to pay for this new, mandated post. “I’m going to have to have somebody,” she said.
The job will require field work, going to court and the jail, and monitoring anyone in the program.
“It’ll require somebody who is really willing to get out and monitor people in an active way,” she said.
