The proposal aims to change the constitution — and who has the right to bail in Indiana

Indiana Statehouse (photo from IL file)

A Bedford Republican wants to change who has the right to bail in Indiana — and it will mean changing the state’s constitution to get it done.

Prosecutors say Senate Joint Resolution 1 by Senator Eric Koch would keep dangerous people off the streets before the trial, while defense attorneys and civil rights activists say its subjectivity could jeopardize the rights of those individuals presumed innocent until convicted.

In Indiana, only people charged with murder or treason can now not get bail.

Everyone else can pay to get out of pre-trial detention, although judges typically set higher bails for those with more serious charges, who may not show up for trial or who are otherwise deemed a security risk.

“But if they overestimated that bail, the Indiana Supreme Court ruled that it could be considered an unconstitutional de facto denial of bail,” Koch told reporters at a Senate Republican presentation of priority legislation on March 9 . January.

So he “worked with the Indiana prosecutors” to create SJR 1. Koch’s proposal would allow judges to deny bail to anyone they believe – based on “strong” evidence – “poses a significant risk to the public.”

“We think this is a tool that Indiana’s criminal justice system needs to have in our toolbox as well,” Koch said.

Action reaction?

Two men made national headlines last year when Indianapolis law enforcement officers arrested each for murder – allegedly committed while each was being paid bail by a charity. Her cases – and others like them – went viral.

With the House Enrolled Act 1300, state legislators stopped the bail project within months.

But both supporters and critics of the Koch proposal say the motivation continues to stretch to a four-year review of the bail system by the Indiana Supreme Court and the rule change that culminated in it.

The court in 2020 told lower courts that they should release those arrested without bail so long as those individuals do not pose a “significant risk of escaping or a danger to themselves or others,” have not already been released on bail, or were not already on parole or probation.

Criminal Rule 26 reversed the previous logic that those arrested should remain in custody until they could raise the money to be released.

For SJR 1 proponents like Daviess County Attorney Dan Murrie, it’s part of the “disconnection” between bail nationally and in Indiana.

At the federal level, there is no absolute right to bail—only Eighth Amendment protection against “excessive” bail. In contrast, Indiana only has two non-depositable fees.

“At least that is my opinion [SJR 1] is the other half of what Criminal Rule 26 does,” Murrie said. He is co-chair of the Legislative Committee of the Indiana Prosecuting Attorneys Council; the judiciary has backed Koch’s proposal.

“If you don’t offer bail for minor offenders or people who aren’t a problem, you also need to identify those who should be precautionary detained,” Murrie added. “It’s just the logical upper half of this concept. And we have been prevented from doing so by the Constitution.”

Even opponents agree that the rule was an important starting point for SJR 1.

“I feel like them [Indiana] The Supreme Court put us on track with Criminal Rule 26,” said Indiana Public Defender Council executive director Bernice Corley.

However, she argued that the rule had already been used to authorize excessive bail, citing the DeWees v. State from 2022. In this case, the Indiana Supreme Court upheld $50,000 bail for an 18-year-old accused of being the driver of an armed burglary because she was considered a flight risk and a risk classified for the safety of the alleged victim. Sierra DeWees had no history and no ability to pay.

Murrie said he’s personally witnessed people in Daviess County allegedly commit crimes while on bail for prior alleged crimes — and found similar cases in counties across the state. He did not want to name specific cases.

But TyJuan Garrett, a vice president and legal counsel for the National Association for the Advancement of Colored People in Indianapolis, has criticized the rhetoric about repeat offenders committing new crimes while on bail as “fear-mongering.”

“This legislation is an overreaction to a straw man, to a boogeyman, there really isn’t,” he said.

With SJR 1, Indiana would join 22 other states that have also adopted language limiting the right to bail, according to research by the Attorney General’s Council.

Discretion vs Discrimination

For SJR 1 supporters, Koch’s proposal would give more weight to public safety in bail decisions, but others say the criteria are subjective and riddled with potential for abuse.

“Indiana is more focused on the defendant’s presence at future hearings,” Murrie argued. “As prosecutors, we want this to expand and give judges more tools than it has now to also protect people in the community.”

“The fundamental piece of freedom and economic prosperity is public safety,” he added. “And that’s what we’re looking for.”

But defense attorneys and civil rights activists feared judges with SJR 1 could deny bail to people charged with low-level crimes.

“From my perspective, we’re already doing a great job in a negative way when it comes to keeping people in custody,” Corley said. “I think that language is just a consolation about what has already been done. And… it widens the catchment area of ​​people who might be caught.”

The vast majority of people detained in county jails run by local authorities nationwide had not yet been brought to justice in 2021 — more than 80%, according to a 2022 report by the non-profit Prison Policy Initiative against mass incarceration. They are presumed innocent until they are convicted.

Corley referenced the bailout plans many counties have that are increasing with severity and violence.

“That proportionality is out the window,” Corley said. “It really has the potential for widespread abuse.”

Corley said people with mental health crises could languish in county jails instead of being diverted to care. Opponents also feared other forms of discrimination.

“Politically, I agree [SJR 1]. The question is: who will make this decision? Senate Minority Leader Greg Taylor asked reporters last week.

“As we’ve seen in the history of any type of public policy that has these types of subjective criteria, people who look like me seem to be on the bottom end of the scale,” said Taylor, who is black.

Garrett of the NAACP said he didn’t think judges would go so far as to discriminate based on race. But he said: “Most judges are elected. Prosectors are elected.”

He argued that none of voters want to be seen as “criminal soft” and would instead be motivated to minimize the potential for people to commit further crimes while out on bail.

Koch, when asked how he would ensure SJR 1 is applied consistently, said Hoosiers should trust their judges.

“We rely on and trust the good discretion of our trial judges, who will make these decisions on a case-by-case basis,” he told the Capital Chronicle.

Murrie, meanwhile, said the intention of SJR 1 was not to “deteriorate” the rights of those arrested, but “to increase the safety of everyone else”.

Looking to 2026

SJR 1 still has a long way to go.

Because it aims to change the Indiana Constitution, it must be approved by two consecutive General Assemblies: this session and after a new Legislature takes office in 2025.

Then there would be a vote in 2026. A majority of Hoosiers would need to support SJR 1 for it to go into effect.

His first hearing is scheduled for Tuesday.