Indiana voters will be asked this fall to change a guarantee that has been in the state constitution since 1851: the right to bail for anyone charged with a crime other than murder or treason.
Public Question 1 will appear at the top of the Nov. 3 ballot. It asks: “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.”
The measure began as Senate Joint Resolution 1, authored by Sen. Eric Koch, R-Bedford. Because Indiana requires constitutional amendments to pass two separately elected legislatures, the resolution cleared the General Assembly once in 2023 and again this year — 43-2 in the Senate in January and 75-11 in the House in February. A companion bill set the ballot wording.
The case for
Koch has framed the amendment as “a great step toward ensuring our communities are protected.” Rep. Chris Jeter, R-Fishers, argued during House debate that “liberty is the norm, but detention is permitted when the risk is extraordinary and demonstrative.”
Supporters emphasize that the burden stays on the state, and at a higher level than the probable-cause standard used for most pretrial decisions. Prosecutors would have to show by clear and convincing evidence that no combination of release conditions would keep the public safe.
The case against
Writing in the Indiana Lawyer, Nicole Salet, a J.D. candidate at the IU Maurer School of Law, argues the amendment amounts to preventive detention and “strips us of a fundamental constitutional right.”
Salet’s commentary offers a hypothetical: a 19-year-old arrested on a Friday for shoplifting a $100 item. Under Indiana Criminal Rule 26, he could post a nominal bond and be home that night. Under SJR 1, prosecutors could move to deny bail, starting a 48-hour clock that excludes weekends — and with a three-day state continuance, she calculates he could spend 10 nights in jail before any judge ever finds him dangerous.
She also faults the ballot language, citing readability indexes that score the question at a college-junior reading level, and objecting that the word “provide” makes a measure that removes a right sound like one that grants something.
Democratic lawmakers raised similar concerns. Sen. Greg Taylor, D-Indianapolis, said the bill would let judges jail people based not on what they have done but on who they are. Sen. Lonnie Randolph, D-East Chicago, questioned the leeway judges would have in weighing dangerousness. Rep. Victoria Garcia Wilburn, D-Fishers, pressed on whether voters could understand the question they will be asked.
Portions of this story are drawn from a Viewpoint commentary by Nicole Salet published in the Indiana Lawyer.