Fishers and Hamilton County voters face a consequential question on the Nov. 3 ballot: When should the government be allowed to keep someone in jail before proving that person guilty?
Public Question 1 would expand Indiana judges’ authority to deny bail. Supporters say it would close a dangerous gap in the law, allowing courts to detain defendants whose release conditions cannot adequately protect others. Opponents say the amendment reaches too broadly and could leave people accused of relatively minor offenses behind bars while their cases proceed.
The disagreement involves public safety, individual liberty and how reliably courts can predict future conduct. It also raises a practical question: Would the change produce carefully targeted detention, or a wider system of incarceration before conviction?
The amendment would apply statewide, including in Hamilton County. It requires approval from a majority of voters voting on the question.
Indiana’s Constitution currently guarantees bail for offenses other than murder or treason. Even those two charges do not automatically eliminate bail; the constitutional exception applies when the evidence meets the stated threshold.
The proposed amendment would retain that exception and add another. For other offenses, bail could be denied when the proof is evident or the presumption strong, and prosecutors establish through clear and convincing evidence that release conditions cannot reasonably protect another person or the community. The text also refers to an accused person posing a substantial risk to others.
That would authorize detention without an opportunity to secure release by posting a bond. It would remain a decision before trial, separate from a determination of guilt.
Judges already consider public safety. Indiana’s existing court rule directs judges to consider flight risk and danger, using an approved risk assessment and other relevant information. It generally favors release without money bail for people who do not present substantial risks, subject to specified exceptions.
Hamilton County’s rules likewise provide for supervision, no-contact conditions and revocation of release when conditions are violated. Its pretrial staff assess the risks of failing to appear, reoffending and harming others.
The amendment would give courts an additional power: denying bail because available conditions cannot reasonably manage an identified danger.
Sen. Eric Koch, the Bedford Republican who authored the resolution, describes it as a way to prevent repeat violent offenders from returning to the community when prosecutors demonstrate a substantial threat.
“It is important to ensure our communities are protected from those who wish to do harm,” Koch said in a January statement.
Elkhart County Prosecutor Vicki Becker offered a similar argument in Mackenzi Klemann’s reporting for the Indiana Capital Chronicle. Becker said prosecutors were concerned about defendants committing further offenses while cases were pending and about inconsistent application of bail reforms.
“The goal is to have the right people in custody for the right reason for the right amount of time,” Becker told the Chronicle.
There is also a fairness argument for allowing detention based on danger: The ability to pay a bond does not establish that someone can be safely released.
New Jersey’s judiciary identified that problem when explaining its own reforms. Under its earlier system, defendants with financial resources could obtain release despite serious risks, while some poorer defendants remained jailed because they could not afford relatively small bail amounts.
For supporters of preventive detention, requiring an explicit finding of danger can provide a more direct justification for incarceration than relying on someone’s ability to raise money.
Opponents question the breadth of Indiana’s proposal and the reliability of those findings.
The amendment contains no limitation to violent felonies. Its language could reach misdemeanor charges if the required findings were established. The ACLU of Indiana opposes the measure, arguing that predictions about dangerousness could expand incarceration before conviction and allow bias to influence who loses their freedom.
That does not mean a minor charge would automatically justify detention. Prosecutors would still have to meet the amendment’s requirements. But its scope is broader than the repeat violent offenders emphasized in supporters’ arguments.
Franklin defense attorney Mike Cunningham told the Chronicle that defense lawyers may have limited access to evidence at this early stage. He questioned whether courts would consistently demand sufficient proof and warned that detention could pressure defendants to plead guilty to get out of jail.
Research gives substance to concerns about the consequences of detention. A 2018 study by economists Will Dobbie, Jacob Goldin and Crystal Yang found that pretrial detention increased convictions primarily through additional guilty pleas and reduced formal employment. The researchers found no net effect on future crime in the populations they studied. Those findings do not predict precisely what Indiana’s amendment would do, but they show that detention can affect outcomes well beyond the time spent in jail.
Lawmakers adopted a companion statute, Senate Enrolled Act 2, setting out procedures scheduled to take effect Jan. 1, 2027.
It provides for a hearing generally within 48 hours of the state’s filing, unless impracticable, with permitted continuances and exclusions for weekends and state holidays. Defendants have a right to counsel, including appointed counsel if indigent.
Courts must consider less restrictive alternatives, issue written reasons for denying bail, and allow appeals. A decision can be reconsidered when significant new information becomes available. The statute also distinguishes the evidentiary standard concerning the charged offense from the clear-and-convincing standard concerning danger and inadequate release conditions.
An important distinction for voters is where those protections reside. The amendment would put the substantive grounds for denying bail into the Constitution. The detailed hearing procedures are in a separate statute. Future legislatures could revise that statute through ordinary legislation, subject to constitutional limits.
Preventive detention itself is not automatically incompatible with the U.S. Constitution. In United States v. Salerno in 1987, the U.S. Supreme Court upheld federal detention provisions based on dangerousness. The court emphasized their limited application to serious offenses and protections including an adversarial hearing and review.
That ruling establishes that detention for public safety can be constitutional. It does not resolve whether Indiana’s particular proposal is wise or whether every future application would be lawful.
Statistics also require careful interpretation.
Klemann reported that the Indiana Criminal Justice Institute’s 2026 report found a 7% rearrest-and-new-charge rate among defendants released in 2025. That figure concerns new charges before earlier cases were resolved. It is not a violent-crime rate or a conviction rate.
The institute’s previous report, published in July 2025 using 2024 data, explicitly warned about incomplete records, inconsistent county reporting and limits on comparisons. That earlier analysis included 70 counties.
For Hamilton County, it listed rearrest rates of 9.2% among defendants released on bail and 1.6% among those released on their own recognizance. These are older figures, not the latest annual results. Nor do they establish that requiring money caused more rearrests: Judges may have assigned defendants with different risks to different release arrangements.
A statewide average cannot, by itself, identify which defendants would meet the amendment’s detention standard or how many crimes the change would prevent.
There are also positions beyond a simple preference for more or less detention.
A voter could support narrowly targeted detention while wanting it limited to specified serious offenses. Another could favor releasing more low-risk defendants without money while supporting detention for a smaller group whose danger is established through meaningful hearings.
New Jersey combined expanded detention authority with sharply reduced reliance on money bail, pretrial monitoring and case-processing deadlines. A 2024 MDRC study found quicker release and other improvements for Black and white defendants, while substantial racial disparities persisted. Its experience illustrates that detention authority is one component of a larger system, with outcomes depending on the surrounding policies and practices.
Hamilton County’s existing program recognizes several of those competing concerns. Its stated goals include public safety, court attendance, lower jail expenses and allowing defendants to keep working and supporting their families. It also expressly seeks to reduce incarceration caused by inability to afford a bond.
If the amendment passes, evaluating its use would require more than counting additional detentions. Relevant measures would include the charges involved, reasons for detention, time spent awaiting trial, appeals, case outcomes and whether comparable defendants receive comparable treatment.
For voters, a yes would authorize broader denial of bail under the proposed constitutional standards. A no would preserve the existing constitutional language. Neither choice eliminates the difficult decisions courts already make about release, supervision and public safety.
The choice is whether to expand the government’s power to detain before trial—and whether the proposed limits and procedures give voters sufficient confidence in how that power would be used.