Discretion – the quality of having or showing discernment or good judgment. – Merriam- Webster Dictionary
An article was recently posted to the on-line issue of the Daily Report, a publication serving Greenfield, Indiana, which reported 95% of the bonds set by Judge Terry Snow were full cash bonds. Essentially, Judge Snow of Hancock County Superior Court 1 is ignoring the recent Indiana Supreme Court ruling in Sneed v. State where Indiana’s highest court ruled that a judge abused his discretion by not permitting a bail bond to be posted in lieu of cash.
The purpose of bail is to provide a guarantee of appearance by a criminal defendant at all required court appearances up to and including trial. In the State of Indiana bail bonds are executed by licensed bail agents and are financially backed by insurance companies approved by the Indiana Department of Insurance. In other words, according to the State of Indiana a financial guarantee provided by a bail bond is as good as cash.
Indiana Code 35-33-8-3.2 provides four options for secured release on bond pending trial. A cash deposit equal to the full amount of the bond, real estate with sufficient equity to cover the bond and a bail bond executed by a licensed bail agent. Additionally, the court can allow for the posting of just 10% of the bond in cash ($1000 cash on a $10,000 bond). A judge can also choose to release a defendant with no bond requirement.
Rule 1:1 of Indiana Code of Judicial Conduct states: A judge shall comply with the law,*including the Code of Judicial Conduct. Sneed v. State said, “…the trial court abused its discretion by requiring a cash only bail.” From the article posted to the Daily Report one could draw the conclusion Judge Snow is ignoring Sneed v. State by not allowing a bail bond to be posted in lieu of full cash. Rather than simply setting a bond which would guarantee appearance and then accepting a legal option for posting bond, Judge Snow appears to take a position which is punitive to the offender; cash only.
The position taken by Judge Snow appears to lack discretion as he, according to the article, is requiring full cash bonds for 95% of offenders that come before his court. This lack of discretion is not uncommon in some Indiana Courts. There are judges in counties like Johnson, Porter, St. Joseph and Vanderburgh who have elected to exclusively accept bonds in the form of a cash deposit equal to ten percent of the bond with the remaining 90 percent unsecured.
In recent months, judges in St. Joseph County (South Bend, Indiana), have been denying a bail bond which secures 100% of the bond opting instead to take a mere 10% of the bond in cash. Why? Do judges so detest bail agents that they would prefer 10% security to 100%? Where is the logic? Where is the discretion?
A one-size fits all bail policy, on its face, lacks discretion. This would hold true of a judge who required a bail bond on every case. There are instances where a first time offender has such strong ties to the community that their risk of flight is minimal and would therefore be a candidate for either a 10% deposit bond or release of their own recognizance.
Conversely, there are repeat offenders and persons charged with aggravated crimes who should be released on a bail bond. Not only does a bail bond provide a 100% guarantee, the bail agent also involves third party co-signors like family members, friends and employers who are willing to cosign the bond. In the event the defendant should fail to appear for court it is these same people along with the bail agent who have a financial incentive to locate and return the defendant to the custody of the court to stand trial. A bail agent will chase a fugitive for months in an effort to get them back into custody and avoid a loss.
The obvious question with these one size fits all bail policies is, does a repeat offender of multiple DUIs, domestic violence or burglaries warrant the same bond option as a first time offender? Those counties exclusively using a 10% cash or full cash option seem to think so. It appears to me many judges in Indiana seem to think, the public isn’t paying attention. I’m sure they’re right in this regard. The general public knows little about the bail process and it’s refreshing to see a reporter actually ask a direct question of a judge’s bail policy. It’s about time citizens of Indiana become aware how some judges in Indiana have taken a position that generating cash from the bond system is more important than ensuring a person charged with a crime appears in court.
There is an immediate remedy available to those defendants who did have the means to post a full cash bond or a 10% deposit bond. Indiana Code 27-10-2-15 unambiguously provides thata cash bond can be replaced at any time prior to a breach (failure to appear) with a bail bond for a full refund of the cash deposit. Of course, it would come as no surprise if Judge Snow, in his discretion, chose to ignore this law as well.