Kosciusko Superior Court 1 Judge David Cates

WARSAW — A new Indiana Supreme Court rule went into effect Jan. 1, which allows offenders deemed low-risk to be released without bail.

Criminal Rule 26 states that if a person is arrested and does not represent a substantial risk of flight or danger to self or others, the court should release the alleged offender without cash bail or surety, subject to restrictions and conditions determined by the court. 

Probation officers will conduct an evidence-based risk assessment using the Indiana Risk Assessment System Pretrial Assessment Tool, in order to obtain information to make risk determinations.

Kosciusko Superior Court 1 Judge David Cates said the rule will impact the Kosciusko County Probation Department, Community Corrections, the sheriff’s office, public defenders, the prosecutor’s office and the courts. 

“It’s possible that in moving forward, some of the alleged offenders could be directed into substance abuse counseling or other kinds of counseling which could be KCADP (Kosciusko County Alcohol & Drug Program), Bowen Center or other counseling programs,” Cates said.

“Probation is, for all intents and purposes, the lead agency because two of our probation officers will have their primary focus dealing with arrestees and seeing if they qualify for pretrial release and pretrial services.”

“Once we proceed further, if we have individuals who fail to appear, if we have individuals who are arrested on new charges, if we have individuals who have dependency issues and they just can’t shake it, it is possible that we’re going to be looking at increasing the level of supervision of some of those individuals,” Cates said. “The judge always has the discretion in those situations to impose additional rules of pretrial supervision which could include Community Corrections.”

“At Community Corrections, don’t forget, the offenders are paying for the right to be on that program,” Cates said. “We’re not using tax dollars — we’re using offenders’ dollars, and when we’re talking about pretrial release, these are folks that are going to be paying for the privilege of having that pretrial release.”

When asked if the 12 probation officers the county currently has will be sufficient, given the additional workload brought on by the implementation of CR 26, Cates said he has spoken with Tammy Johnston, chief probation officer, and has been assured that probation has the personnel to handle the need. 

Cates said he “absolutely” has concerns that some offenders will be deceitful when answering the risk assessment questions. 

“That’s why our probation officers are already looking at their answers and taking the time to check them,” Cates said. “They’ve been checking a number of sources to get as accurate information as possible.”

According to Johnston, 28 people in Kosciusko County have been released on their own recognizance so far this year due to CR 26.

As far as tracking data, Cates said they may be able to get money from the Supreme Court to assist with that. 

“Part of what we’re required to do is track, because this is evidence-based decision making – that is the genesis of this,” Cates said. “To do that, our systems have to be able to track the data that the Supreme Court directs us to track, which includes a myriad of things.”

“I’ve talked with Tammy Johnston and she has assured me that the programs we have in place will track that data so that we can meet that grant requirement,” Cates said. 

When asked if there have been problems with the pretrial release system, Cates said he is aware of two individuals who qualified for pretrial release and then failed to appear at probation as directed. 

“I consider that a problem,” Cates said. “If there was only one person who failed to appear, I would consider that a problem. It is something we need to address.”

“Other counties, test counties, that have implemented this, the one I’m thinking of had an increase in their failures to appear of 18 percent,” Cates said. “In 2018, the statistics I saw showed that the number one reason people were arrested and incarcerated in our county had to do with substance abuse issues — drugs and alcohol. The number two reason was failure to appear.”

Cates said the number of failures to appear are likely going to increase; however, he cautioned, if someone qualifies for pretrial release and then they fail to appear, they don’t automatically qualify for a pretrial release after that.

“So someone who has failed to appear, it’s not like they’re going to be able to fail to appear over and over and over,” Cates said. “A warrant can be issued and they don’t qualify for that release after that.”