The ISBAA has been discussing filing a Writ of Mandamus and having a Hearing in front of the Supreme Court to compel Indiana Courts to provide Surety Bonds as an option for the defendant when money bail is required. A similar suit was filed in Ohio and successfully challenged by the Ohio Bail Agents Association through attorney Greg Barwell. ( see State ex rel. Sylvester v. Neal, 140 Ohio St.3d 47, 2014-Ohio-2926) He has offered to help us do the same for a flat fee of $20,000.00.

In order to initiate the process, we must choose a county and select a defendant who was denied the option of posting a surety bond. Then a cease and desist letter will be sent to the court and prosecutor to stop using cash only bonds to secure the release of criminal defendants. If the courts do not honor the CEASE and DESIST letter or fails to respond, a writ of mandamus will be filed in the Supreme Court.

There are pros and cons to this action. If successful, this would allow the use of surety bonds in all cases when bail is set by the courts and no longer require the defendant to pay cash only to the court.

If unsuccessful, all courts could freely disallow surety bonds in all cases. Meaning counties that currently use surety bonds, could no longer use surety bonds as an option.

The constitutional issue has already been taken up in 2000, and in 2007 it was determined the 10 percent and cash only bonds were not unconstitutional. (see Smith vs State)

However, in an Appellant Court Decision in Sneed vs State in 2011, the court determined the trial court errored by not allowing the option of a surety bond. (see Sneed vs State)

Another hurdle to overcome would be the 2016 implementation of Trial Rule 26. This gave the courts the discretion to set the amount and type of bail when money is required to secure the defendants release. The judges broad discretion was later challenged in DeWees vs State in 2022. The Supreme Court explicitly stated that the codification of Criminal Rule 26 essentially “enhances, rather than restricts, the discretion entrusted to trial courts when determining bail.” (see DeWees vs State)

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