Two partner bills passed the House Judiciary committee Monday that would amend the Indiana constitution as it relates to a judge’s authority in setting bail.
Senate Joint Resolution 1, authored by Sen. Eric Koch, R-Bedford, would allow for a constitutional amendment to state if someone commits a crime other than murder or treason then a judge could deny bail if there is strong evidence against the defendant or if prosecutors present evidence that withholding bail will ensure the safety of others.
Senate Bill 3, also authored by Koch, provides the ballot question language for the constitutional amendment, which would state: “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.”
To amend the state constitution, two separately elected state legislatures have to approve a joint resolution. Then, the state legislature has to pass a piece of legislation with the constitutional amendment ballot question, said Indiana University Maurer School of Law professor Jody Madeira.
The resolution to amend the constitution concerning bail passed in the 2023 legislative session. If Senate Joint Resolution 1 and Senate Bill 3 pass this session, voters will be able to vote on the ballot question in November, Koch said.
Koch said in addition to his two bills, Senate Bill 2, authored by State Sen. Aaron Freeman, D-Indianapolis, has been working through the legislature to “put some guardrails around the amendment.”
“Senate Joint Resolution 1, if added to the Indiana constitution, would allow judges to consider public safety in setting bail. Under federal law, there’s no explicit right to bail under the U.S. Constitution, only a prohibition of excessive bail under the Eighth Amendment,” Koch said.
In 31 states, the District of Columbia and the federal system defendants “do not have an express right to bail,” Koch said.
“We currently are in the minority,” Koch said. “If adopted, Indiana would join the 31 other states in recognizing that there are times when it is simply too dangerous to public safety to release a defendant before trial, under bail or any other conditions.”
Zach Stock, legislative counsel with the Indiana Public Defender Council, said the organization opposed the joint resolution and was neutral on the public question language. Stock raised concerns about the constitutional amendment’s negative impact on the presumption of innocence, jail capacity and implementation.
The Indiana Public Defender Council doesn’t believe Indiana has to make a change to its bail system, Stock said. A judge testified before the bail and release commission over the summer that 99.13% of assessed pretrial defendants did not commit a new violent crime, Stock said.
“Every violent crime is tragic. We just don’t believe violent crime by pretrial arrestees is the problem. We don’t think arrestees are driving the violent crime rate,” Stock said.
Stock said the council was neutral on the ballot question language because it’s a process that has to be followed to amend the constitution. But, Stock said the language “is slightly primed for voters to say yes.”
“In our view, it only tells part of the story,” Stock said. “It focuses entirely on what the voters will get, a seemingly small change in criminal procedure, and not what they are losing.”
Courtney Curtis, assistant executive director of the Indiana Prosecuting Attorneys Council, said the organization supports the joint resolution and the ballot question language because both focus on “protecting communities.”
The language in Senate Joint Resolution 1 would provide “clear goal posts” of what attorneys and defendants have to prove and what judges have to look for when determining a bail amount, Curtis said.
“Preventative detention is in line with bail reform. It doesn’t walk back bail reform, it’s part of it,” Curtis said. “SJR 1 focuses on danger to the community as well as the strength of the evidence against the defendant.”
Curtis said the public question language “is a very vanilla statement,” that doesn’t aim to sway voters.
Samantha Bresnahan, senior policy specialist with the ACLU Indiana, said the organization opposed the constitutional amendment because it would “expand pretrial detention and increase the number of Hoosiers jailed before conviction.”
Being held indefinitely before trial presents harms to the defendant, like losing a job, housing or custody of their children, Bresnahan said. If the defendant is later found to be innocent and released, those harms can’t be undone, she said.
Indiana has taken meaningful steps to lower jail populations, and the constitutional amendment would walk back those efforts, Bresnahan said.
“Under Indiana’s constitution today, bail may be denied only in the most extreme cases: murder or treason. SJR 1 would fundamentally change that standard, allowing people accused of other offenses to be jailed indefinitely before trial despite the presumption of innocence that lays at the heart of our justice system,” Bresnahan said.
Brad King, the Republican co-director of the Indiana Election Division, said he supported Senate Bill 3 because the language that appears on the ballot “is critically important.”
In 2024, voters were presented with a technical public question about repealing a reference to an abolished office, the Superintendent of Public Instruction, from the constitution, King said.
Ahead of the election, King said the office received many questions about that constitutional amendment and it barely passed.
“No one was actively campaigning against it. The voters were simply confused,” King said.
Senate Bill 3 presents “simple, understandable” language for the voters, King said.
Senate Joint Resolution 1 passed the committee 8-1, with State Rep. Alex Burton, D-Evansville, voting against the resolution.
Senate Bill 3 passed the committee 7-2, with State Rep. Victoria Garcia Wilburn, D-Fishers, and Burton voting against the bill.
Garcia Wilburn said she voted against Senate Bill 3 because she believes the language “could be a little bit better.”
Both bills move forward for consideration by the House.
