INDIANA – On November 3, Hoosier voters will go to the polls to elect candidates to a variety of local, state, and federal offices. Many, however, may not expect to see before them an amendment to the Indiana Constitution.
Near the bottom of the ballot will be Public Question 1, which gives voters the opportunity to amend Article 1, Section 17 of the Indiana Constitution to allow judges more discretion to deny bail to dangerous criminal suspects.
Under current law, judges may only deny bail to suspects accused of murder or treason. As a result, we have seen dangerous criminals released on bail only to see them commit another violent crime when out. The judges are often blamed – but they may have had no choice.
Senate Joint Resolution 1, which I authored, changes current law and aligns Indiana with the majority of states and the federal court system. If passed by the voters, judges would now be able to deny bail to dangerous defendants arrested on charges other than murder and treason if their release would pose a substantial risk to public safety. The state would have the burden of proving that the proof is evident or the presumption strong and, by clear and convincing evidence, that no conditions of release would reasonably protect the safety of another person or the community.
Guardrails established by separate legislation, Senate Enrolled Act 2, protect the due process rights of the defendants by ensuring a prompt bail hearing, representation by counsel at the hearing, and a list of relevant factors courts should consider in determining whether to deny bail. This makes preventive detention limited, promptly reviewable by an appellate court, and based on evidence supported by written findings by the court.
It’s not easy to amend the Indiana Constitution – nor should it be. A proposed amendment is required to pass two consecutively elected General Assemblies and then be approved by the voters. The General Assembly has spoken by bipartisan majorities. This November, the voters will have their say.
