Hoosiers will vote this fall on a proposed constitutional amendment, set for the Nov. 3 ballot, that seeks to redefine pretrial detention rules. This change could grant Indiana judges the ability to deny bail to more defendants if they believe those individuals pose a danger to the public.
Currently, the Indiana constitution guarantees the right to bail for all offenses, with the sole exceptions being cases of murder or treason. This constitutional provision has meant that judges cannot deny bail even when they believe a defendant may reoffend while awaiting trial.
The proposed amendment, which has been years in the making and was approved by two successive general assemblies in 2023 and 2026, would preserve the right to bail for all offenses other than murder or treason. However, it introduces a critical exception: bail could be denied if the defendant poses a “substantial risk to any other person or the community.” In such cases, if “the proof is evident or the presumption strong” of their guilt, the state would be required to prove “by clear and convincing evidence” that no other release conditions would “reasonably” protect public safety.
Defendants would be entitled to an attorney and a hearing if the state asks to deny them bail, along with the right to appeal the court’s decision. A companion bill adopted earlier this year provides further guidance, directing courts to consider the evidence against the defendant and the nature of the offense, including whether it involved drugs, alcohol, or violence. Judges should also consider the arrestee’s character, health, family ties, employment, financial resources, community ties, criminal history, and potential danger to the public. Courts must also assess the suitability of alternatives to pretrial detention. Evidence produced at a bail hearing cannot be submitted at trial except in impeachment or perjury inquiries.
Supporters of the amendment argue it is needed to detain defendants who repeatedly commit violent crimes while out on bail. Vicki Becker, the Elkhart County prosecutor, stated, “The goal is to have the right people in custody for the right reason for the right amount of time.” Becker expressed that prosecutors became increasingly concerned about bail reforms adopted in recent years, which she believes were applied inconsistently across the state and sometimes did not prioritize public safety. She noted that a major "catalyst" was the number of individuals committing new offenses while out on bond. While the amendment requires “clear and convincing evidence,” Becker indicated that the most likely source of evidence for judges will be the court record itself, demonstrating prior supervision or pending cases.
Conversely, critics, including Franklin criminal defense attorney Mike Cunningham and the American Civil Liberties Union of Indiana, worry the amendment jeopardizes due process rights for defendants who could spend months in jail without a conviction. Cunningham stated, “The purpose of bail right now is to make sure people show up to court. That’s it. That’s the purpose.” He believes the current system “works,” noting that judges already have discretion to order conditions like ankle monitors or firearm prohibitions, or to set bail high enough to ensure court appearances. Cunningham expressed concerns that judges might accept weak evidence or that lawmakers could later rewrite the established standards. He also highlighted that the amendment is not limited to serious felonies, suggesting a 19-year-old charged with misdemeanor reckless driving could be held without bail if a judge or prosecutor “want to send a message,” potentially pressuring defendants to plead guilty to avoid prolonged detention.
Each Indiana county sets its own advisory bail schedule to guide judges. For example, Marion County Superior Court sets bail at $50,000 for serious felonies, though defendants may pay less through a licensed bail bondsman. In Elkhart County, the schedule calls for $150,000 bail for Level 1 felonies. Murder remains ineligible for bail, while defendants charged with misdemeanors or non-violent felonies, such as marijuana possession, are typically released on their own recognizance or without bail. Aggravating factors like possession of a deadly weapon, inflicting serious bodily injury, or a history of felony convictions can result in higher bail. Judges retain the power to order a defendant back to jail if they are arrested again or violate release terms.
Data from the Indiana Criminal Justice Institute last year shows that 7% of defendants released on bail or their own recognizance statewide were rearrested and charged with a new offense while awaiting trial. Rearrest rates varied significantly by county; Allen County reported 32% for defendants released on bail and 24% for those without bail. In Boone County, the rearrest rate was 4% for those on bail and 0.6% for those on their own recognizance. Dearborn County reported the lowest rearrest rate at 0.3%. An analysis of Indiana Office of Court Services data, reviewed by the ACLU of Indiana, indicated that few of these defendants committed new violent crimes while awaiting trial.
The upcoming statewide vote will require Hoosiers to weigh competing values: the desire for enhanced public safety, as advocated by prosecutors, against the protection of individual liberty and due process rights, as voiced by defense attorneys and civil liberties advocates.