Indiana’s General Assembly passed an amendment that Hoosiers will vote on this November.
Seriously weighing this amendment is a voter’s responsibility. Do we want to give judges more discretion to keep people who are constitutionally “presumed innocent” incarcerated in local jails while awaiting trial?
While incarcerated, a person cannot work at their job, maintain stable housing and spend time with their family. If they are caregivers, they cannot fulfill those duties. So does the amendment expand the powers of the criminal justice system over the lives of people presumed innocent, or give judges the discretion to protect anyone who might be endangered by the accused’s freedom?
To help you consider the arguments for and against thoughtfully, the League of Women Voters reached out to the local public defender’s office and to candidate for prosecutor Jacob Moore.
Deputy Public Defender Lisa Manning provided answers to the five questions we posed.
What practical problem in Indiana’s current bail system is this amendment intended to solve, and what evidence shows that the existing law is inadequate?
The Indiana Constitution currently allows bail denial only for murder or treason. This amendment would permit courts to deny bail if there is strong evidence the defendant committed the crime and the state proves, by clear and convincing evidence, that no release conditions can ensure victim or community safety.
While there’s little comprehensive evidence that pretrial bail has increased crime (2024 pilot program data shows 9 out of 10 defendants did not re-offend while released pretrial), mandating bail has not reduced jail crowding. In 2024, 31 Indiana county jails were over capacity, with 78% of inmates held pretrial, demonstrating that an incentive for pretrial release — less jail crowding — has not materialized.
Why must this change be made through a constitutional amendment and a statewide ballot measure, rather than through an ordinary law that the General Assembly could revise as courts and communities gain experience with it?
The Indiana General Assembly has enacted statutes allowing bail denial in narrow situations, such as when a defendant is on probation or parole. However, these allowances apply post-conviction. Pretrial defendants enjoy the presumption of innocence, meaning the General Assembly’s authority cannot supersede their constitutional right to bail. As the Constitution currently limits bail denial to murder and treason, the General Assembly cannot alter a constitutional right; only the people can.
The amendment would allow pretrial detention when the state shows that no release conditions can reasonably protect another person or the community. How would judges determine “substantial risk,” and what safeguards would ensure that standard is applied consistently and without bias?
Judges may apply “substantial risk” differently. The State bears the burden of clear and convincing evidence, likely requiring victim testimony (in person or through an advocate). The State may also use prior criminal history, especially for repeat violent offenses or offenses against a particular victim. There is no way to ensure consistency or lack of bias; judges will have discretion. However, bail denial is directly appealable, allowing higher courts to review judges’ decisions, which will become an even more crucial safeguard if this amendment passes.
Supporters argue the measure would give courts a needed tool to protect the public from dangerous defendants. What are the strongest public-safety arguments for voting yes, and in what types of cases might the new authority make a meaningful difference?
The strongest argument for voting yes is to restore judges’ ability to evaluate bail on a case-by-case basis. Currently, the Constitution does not allow bail denial when a defendant threatens to kill a neighbor with a history of violent crimes, or when a defendant abuses his wife for years and holds his family hostage at gunpoint. In the latter case, the longest the court could hold the defendant is 24 hours, forcing the victim and family into a shelter while the defendant returns home. Similarly, a court cannot deny bail when an out-of-state defendant comes to Indiana to sell drugs, possesses guns, and leads police on a high-speed chase. This amendment would allow bail denial in many such cases, making a meaningful difference in public safety.
Opponents worry that broader pretrial detention could keep more legally innocent people in jail, worsen overcrowding, and disproportionately affect vulnerable defendants. What are the strongest arguments for voting no, and how should voters weigh those due-process concerns against the amendment’s public-safety goals?
The strongest argument for voting no is the current disproportionate application of bail. A 2022 Indiana University study found average bail amounts are 34% higher for Black men and 19% higher for Latino men than for white men facing equivalent charges. Black residents, making up 9% of Indiana’s general population, constitute over 34% of the incarcerated population. Judges, like all citizens, possess implicit biases. Increasing their discretion will likely exacerbate racial and economic disparities. Although this amendment attempts to prevent detention based solely on charges, it falls short of a true presumption of innocence.
There is also a potential to endanger victims by requiring them to testify against defendants shortly after arrest, with no guarantee of denied bail. This is particularly concerning for domestic violence victims, who are most vulnerable when leaving a relationship. If a victim testifies at a bail hearing and the court still grants bail, the victim could face a much higher risk of increased violence or death.
Additionally, despite existing jail overcrowding, this amendment will undoubtedly increase the number of pretrial inmates. Overcrowded jails create safety concerns for officers who cannot carry lethal weapons and can lead to dissent and riots. Officers face greater risks when jails exceed capacity, often leading to new jail construction and diverting tax dollars from infrastructure and schools.
Candidate for Prosecutor, Jacob Moore, shared his perspective to help voters consider this. It is critical to note: The views expressed are Moore’s as a candidate for Prosecuting Attorney for the 22nd Judicial District (Montgomery County). They do not represent the Montgomery County Prosecutor’s Office or the Indiana Prosecuting Attorneys Council.
Currently, the Indiana Constitution allows denial of pre-trial release on bail for murder or treason if proof is evident or presumption strong. Public Question #1 would amend the Constitution to allow denial of bail for other offenses if: (1) proof is evident or 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.
I am somewhat inclined to support Public Question #1. The question is about what authority Indiana’s trial court judges have to determine if a person charged with a crime can safely be released while awaiting trial.
Indiana already has a system for determining pretrial release, allowing courts to impose conditions of release and when to require bond. Judges consider factors like likelihood of appearing for court and risk of harm to others or the community. Presently, Indiana recognizes that public safety and whether the accused will show up in court are factors in pretrial release.
Public Question #1 would allow courts to constitutionally deny bail for offenses other than murder or treason when two requirements are met: first, proof is evident or presumption strong; second, the State proves by clear and convincing evidence that no release conditions would reasonably protect another person or the community.
The second requirement is crucial. The amendment would not simply allow a judge to deny bail due to a serious offense or perceived danger. The State would have to meet a heightened burden of proof to demonstrate that release conditions would not reasonably protect others or the community. The question is not whether an individual presents some risk, but whether that risk can be reasonably addressed through release conditions.
The proposed “clear and convincing evidence” standard is higher than the preponderance of the evidence standard but lower than the beyond a reasonable doubt standard. This distinction is important because a pretrial detention decision is not a determination of guilt; a person is presumed innocent until proven guilty beyond a reasonable doubt, either by plea or trial.
The presumption of innocence is vital. Pretrial detention is a serious deprivation of liberty and should not substitute for post-conviction punishment. However, public safety is also a legitimate consideration. There may be circumstances where release conditions are insufficient to protect others or the community.
I generally favor allowing trial court judges discretion in individual cases, as the legislature cannot anticipate every circumstance. This is seen in criminal sentencing, where statutes offer a range of permissible penalties while judges consider unique circumstances. I believe judges, as members of the impacted community, should have the ability to consider these circumstances rather than treating each case identically.
However, pretrial detention differs from sentencing because the person has not yet been convicted. Therefore, any authority to detain before trial must have meaningful limitations. In my view, Public Question #1’s heightened requirements — requiring the State to establish both evident proof/strong presumption and, by clear and convincing evidence, that no release conditions will reasonably protect others or the community — provide such limitations.
Ultimately, Public Question #1 asks how much additional authority Indiana should grant trial court judges for individualized pretrial detention decisions. I do not believe every person accused of a serious offense should automatically be held without bond, nor that every accused person should necessarily be released, with conditions imposed when needed. Rather, I believe judges should have the constitutional authority to determine, based on evidence, that no release conditions can reasonably protect others or the community.
Reasonable people may disagree on the balance between individual liberty, presumption of innocence, and public safety. I believe Public Question #1 appropriately leaves this difficult determination, in qualifying cases and subject to the proposed amendment’s requirements, with the trial court judge, who is best positioned to evaluate the circumstances and facts.
A “Yes” vote means that you would like to approve this amendment and add it to the Indiana Constitution.
A “No vote” means that you would prefer to keep the Constitution as is.
There is also a second question, which if approved would expand the definition of the community of which a judge is a member of. Right now, they must live in the jurisdiction where they serve. The amendment would allow them to live in adjoining county.
A “Yes” vote means that you would like to approve this addition to Indiana Constitution.
A “No” vote means that you would like to to keep the requirements as they are now.
The League of Women Voters, a non-partisan, multi-issue organization encourages informed and active participation in government, works to increase public understanding of major policy issues and influences public policy through education and advocacy. All men and women are invited to join the LWV where hands-on work to safeguard democracy leads to civic improvement. For information, visit the website www.lwvmontcoin.org or the League of Women Voters of Montgomery County, IN Facebook page.
