Deborah Daniels: Bail is major obstacle to reducing violent crime

Next week, IBJ begins a focus on issues impacting the vitality of the city’s central core. Allow me to address one important concern: violent crime. This is a serious, perhaps existential, problem we must deal with as a community.

The Indianapolis Metropolitan Police Department is trying to reduce violent criminal activity, including assigning teams of officers assigned to patrol areas known for gun violence.

Because some residents are understandably on edge in the wake of the unforgivable Tyre Nichols killing by police in Memphis, it is important to note that there is no indication that IMPD’s tactics in any way resemble those of the now-infamous Memphis SCORPION unit. IMPD’s use-of-force policy—revised in 2020 to include the duty to intervene, the requirement of deescalation where possible, use of force proportionate to the situation, and other appropriate limitations—makes the department a positive example of police reform.

But strategic policing is not sufficient to solve this mammoth problem. There are other barriers to success that must also be dealt with.

One of the most significant obstacles to reducing violent crime is Indiana’s constitutional right to bail. Our constitution requires that bail be set for all defendants except those charged with murder or treason. As a result, serious criminals who pose a threat to the community at large, as well as to the witnesses to their crimes, must be assigned bail. Those with money, such as drug dealers, can afford to post whatever bail is set and continue to terrorize their communities while awaiting trial.

The result? Witnesses are intimidated and do not testify. Neighbors who are aware of criminal activity are afraid to report it to the police or cooperate in any way. The worst criminals can literally get away with murder.

Finally, a remedy is in sight for this particular barrier to public safety. Sen. Eric Koch has introduced Senate Joint Resolution 1, proposing to amend our state constitution to allow judges to deny bail to any person who “poses a substantial risk to the public.”

Just this simple change could make a world of difference. Back in the 1990s, when I was with the Justice Department, we worked with the Haughville community to try to reduce crime and facilitate economic opportunity in that neighborhood. The neighborhood’s biggest crime problem was a single gang leader who terrorized the community. Every time he was arrested, he would get out on bail and go right back to his intimidating ways.

Using the federal system, which denies bail if the government can prove the person is a danger to society, we were able to arrest and detain him until trial on federal gun possession charges. His eventual conviction netted him 30 years in prison. He was no longer an obstacle to Haughville’s success. People were no longer afraid to cooperate with the police. In fact, community residents developed a close working relationship with the police.

This is what the state system needs as well. By denying bail to these dangerous criminals—regardless of the specific charge on which they might have been arrested, which is irrelevant to the danger they pose—the criminal justice system can take the worst of the worst off the streets. Their victims will feel more comfortable about testifying, and their criminal compatriots will be in jeopardy if they demonstrate that they, too, pose a threat to society by intimidating witnesses.

Yes, permissive bail is just one aspect of a complicated problem. But this constitutional amendment would go a long way toward helping to solve it.•

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Daniels, an attorney with Krieg DeVault LLP, is a former U.S. attorney, assistant U.S. attorney general, and president of the Sagamore Institute. Send comments to ibjedit@ibj.com.

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