Because the Network has a membership benefit of assisting innocent members in obtaining bail bond, members often express a wish to understand how posting bail works in their state. After we thought we had completed the attorney discussion about bail in June, an extensive and educational commentary arrived from our affiliated attorneys in Indiana, so we unexpectedly extend this topic one more month. Here are the questions we asked:
Is bail bonding allowed in your state?
If not, what options exist for a defendant to be released from jail following self defense gun use?
Typically, what conditions, restrictions or allowances affect bail if the defendant has used a gun against another human?
When you counsel clients and their families, what “reality checks” do you explain to dispel unrealistic expectations?
E. Michael Ooley
Boehl, Stopher & Graves, LLP
400 Pearl Street, Suite 204, New Albany, IN 47150
Bail bonding is allowed in Indiana. In fact, for all criminal charges except murder, a person arrested in Indiana has a right to bail. Murder is not bailable if the state proves by a preponderance of the evidence that the proof is evident or the presumption strong. In all other cases, offenses are bailable. Ind. Code § 35-33-8-2.
In many counties in Indiana there is a bail schedule, which is used to establish the standard amount of bail for a particular charge. This bail schedule is determined by the local judges, and the bail schedules varies by county. The bail schedules in Indiana are available online (https://www.in.gov/ipdc/public/2343.htm).
A person arrested can often post bail based on the bond schedule either through the sheriff or the court clerk’s office before his or her initial hearing in court has even occurred. This is possible when the court sets the bond with a finding of probable cause. However, sometimes the court will set the amount of bail at the initial hearing. As provided by statute (Ind. Code § 35-33-7-4 and § 35-33-7-1), an arrested person must be taken “promptly” before a court for an initial hearing, but the term “promptly” is not defined in the statutory provisions and there is no certainty concerning the meaning of the term. In May v. State, for example, the members of the Indiana Supreme Court were sharply divided concerning the application of these statutory provisions to the defendant’s detention before his first court appearance. Ultimately, the court held that a nearly 10-day detention before the initial hearing was okay where probable cause had already been found by the judge. May v. State, 502 N.E.2d 96, 101 (Ind. 1986). If probable cause has not been found by a judge, the initial hearing must take place within 72 hours of the arrest.
If a person is arrested while on probation, Indiana law allows the person to be held for up to fifteen (15) days without bail (often referred to as a “15-day hold”) to allow time for a probation violation to be considered. Once the 15 days is over the court must set bail on the new case, although if a probation violation is filed, Indiana law allows a person to be held without bail on that violation.
The Indiana Constitution provides that excessive bail shall not be required. In general, bail may not be set higher than that amount reasonably required to assure the defendant’s appearance in court or to assure the safety of another individual or the community. However, the defendant’s inability to procure the amount necessary to make bond does not necessarily render the amount of bail excessive.
In addition to the standard bond schedule, a court will look at several factors in determining the amount of bail including the seriousness of the charges and factors which could make the defendant a flight risk. Specifically, Ind. Code § 35-33-8-4 lists factors judges should consider when determining the amount of bail:
- The length and character of the defendant's residence in the community;
- The defendant’s employment status and history and the defendant's ability to give bail;
- The defendant’s family ties and relationships;
- The defendant’s character, reputation, habits, and mental condition;
- The defendant’s criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court’s authority to bring the defendant to trial;
- The defendant’s previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;
- The nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;
- 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;
- That the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and
- 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 the defendant to trial.
If the court determines that an arrested person is of minimal risk, the court may release him on his “own recognizance,” sometimes referred to as being “OR.” This means the person is released on his promise to return as ordered, without requiring him to post a bond.
In addition to a bond, the court can also place other restrictions on the defendant as a condition of pretrial release “to assure the defendant’s appearance at any stage of the legal proceedings, or, upon a showing of clear and convincing evidence that the defendant poses a risk of physical danger to another person or the community, to assure the public’s physical safety.” Ind. Code § 35-33-8-3.2.
The determination of imposing a particular condition of bail in a particular case is within the trial court’s discretion and is reviewable only for an abuse of that discretion. If a condition of bail involves Second Amendment rights, the determination of what is reasonable under the bail statute must factor in those rights. The reasonableness of a condition of bail necessarily depends upon the relationship of the condition to the crime or crimes with which the defendant is charged and to the defendant’s background, including his or her prior criminal conduct. Steiner v. State, 763 N.E.2d 1024 (Ind. Ct. App. 2002). These conditions may include restrictions such as a no-contact order, home detention pending trial, or restrictions on the possession of a firearm.
It’s important for clients to understand that, if they are arrested, there is a potentially long waiting period before they are processed in the jail and scheduled for an initial hearing. If bond is already set and someone is able/willing to post that for you, you may be released before your initial hearing is scheduled. However, if bond is not yet set or no one has posted bond before the initial hearing, you may still be in custody when you are brought before a judge.
The expense of posting a bond can be substantial, and this expense may make it hard to afford a competent attorney. It’s also important to understand that the bond amount is not always returned in its entirety. There is always some risk with going to trial, and if someone is not completely innocent, it may be beneficial to enter into a plea agreement, which often entails forgoing some or all of the bond money that was posted.
If you were justified in the use of force and are completely innocent, the cost of getting out of jail and hiring an attorney will be substantial nonetheless–likely tens of thousands of dollars just to get started. That’s why organizations like the Armed Citizens’ Legal Defense Network are so valuable. If you are required to use force, and you are justified in doing so, the Network can help you by providing for many of these costs up front.
A big “Thank You!” to our affiliated attorneys for their comments. Please return next month when we pose a new question to our affiliated attorneys.
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