Indiana voters are being asked to consider a ballot question that would widen a judge’s ability to deny bail for defendants in cases other than murder and treason.
The amendment to the state constitution has already been passed by the General Assembly twice, in 2023 and 2026, and a public vote is the last step in the process.
The measure, legal experts said, would give judges more options to keep defendants charged with serious crimes in jail while they await legal proceedings. At the same time, experts noted that defendants are innocent until proven guilty, and the sweeping measure could keep people in jail for low-level offenses.
The ballot measure, which requires a yes or no answer, is as follows:
Currently, under the Constitution of the State of Indiana, a person charged with murder or treason is not entitled to be released on bail if the proof is evident or the presumption strong. Shall the Constitution of the State of Indiana be amended to provide that a person charged with an offense other than murder or treason is not entitled to bail if: (1) the proof is evident or the presumption strong; and (2) the state proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. (This question concerns Article 1, Section 17 of the Constitution of the State of Indiana.)
The measure, which Zachary Cormier, an associate professor of law at Indiana University’s Robert H. McKinney School of Law, said he found “confusing,” transforms bail from a method to keep defendants showing up for court hearings “to a sweeping safety mechanism.”
If the bail measure passes, Cormier said, even defendants charged with misdemeanors like reckless driving could find themselves being denied bail, because all charges are now open to the move “based on the court’s safety considerations.”
Most counties, said Derrick Wilson, president of the Indiana State Bar Association, have bail schedules, but judges have discretion if they feel it’s warranted to impose a higher bail.
Under the Indiana and U.S. constitutions, he added, judges can only deny bail for defendants charged with murder or treason, both Level 1 felonies. Judges do have work-arounds for defendants charged with serious crimes that don’t meet the threshold for withholding bail, Wilson said, including setting a high bond.
“You’re just not going to be able to make bail” if it’s set really high, said Wilson, who reached out to half a dozen judges and attorneys before responding to the Post-Tribune’s request for an interview.
Judges don’t necessarily need the ballot measure because, in addition to adjusting bail, they can require that defendants wear an ankle monitor, submit to routine drug testing and other mandates to make sure a defendant shows up for court hearings, Wilson said.
The ability for judges to withhold bail in additional cases would be more transparent than setting a high bail, Wilson said, but also results in higher incarceration costs.
Of the judges Wilson said he spoke with about the ballot measure, some weren’t sure about it while others liked the option of having another tool they can use in the courtroom.
“If something like this passes, it’s probably going to be up to each county prosecutor to decide how to use it,” Wilson said, adding the court would have to hold an evidentiary hearing to determine whether a defendant would be granted bail.
Because that could put an additional constraint on prosecutors’ time, Wilson said, judges might have to request that prosecutors pick and choose the cases they want to be considered where a defendant is held in jail without bail.
Based on state statute, said Cormier, judges consider a pre-trial risk assessment when determining whether to release a defendant on bail, but judges don’t have to follow that recommendation if a defendant is a flight risk.
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“That’s the primary purpose of bail,” he said, “to make sure someone shows up for trial.”
Under the ballot measure, as quoted, the court can withhold bail “if the proof is evident or the presumption strong,” but Cormier said even that is concerning because a jury isn’t weighing that evidence.
The second component of the measure, “that no release conditions will reasonably protect the safety of any other person or the community,” Cormier said, “is simply a safety consideration.”
Unless a defendant committed murder or treason, Cormier said, their right to consideration for bail was guaranteed.
“Now your consideration for bail is completely detached from the crime you committed,” and based on safety, he said, while the defendant is still considered innocent until proven guilty.
If the constitutional amendment is approved, Cormier said, it’s not clear what the role of the pre-trial risk assessment system would be going forward. Additionally, the amendment assumes a defendant is likely to re-offend while out on bail, he said, while the percentage of defendants who do so is relatively low.
According to statistics from the Indiana Criminal Justice Institute, 7% of defendants out on bail are re-arrested.
“It’s not the right to bail, but the right to be considered for bail,” Cormier said. “It changes that dramatically.”