Right to bail: Amendment asks voters to rewrite pretrial detention rules
by Mackenzi Klemann, Indiana Capital Chronicle
October 5, 2026
Indiana judges may soon have the ability to deny bail for more defendants they believe pose a danger to the public.
Defendants are guaranteed the right to bail under the Indiana constitution except in cases of murder or treason — even when a judge believes the defendant may reoffend while awaiting trial.
Hoosiers will vote this fall on a proposed constitutional amendment years in the making to rewrite these rules, so judges could deny bail to any defendant if the state proves they cannot be safely released.
Supporters say the amendment is needed to detain defendants who repeatedly commit violent crimes while on bail, while critics worry it jeopardizes due process rights for defendants who may spend months in jail without a conviction.
Two successive general assemblies approved the proposed amendment: in 2023 and 2026. Now it goes to the people on the Nov. 3 ballot.
What does the amendment say?
The amendment would preserve the right to bail for all offenses other than murder or treason — unless the defendant poses a “substantial risk to any other person or the community.”
Those offenses would not be eligible for bail if “the proof is evident or the presumption strong” of their guilt. The state would then need to prove “by clear and convincing evidence” no other release conditions would “reasonably” protect public safety.
Defendants are entitled to an attorney and a hearing if the state asks to deny them bail, as well as the right to appeal the court’s decision.
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A companion bill adopted earlier this year directs courts to consider the evidence against the defendant and nature of the offense — did it involve drugs, alcohol or an act of violence?
Judges should consider the arrestee’s character, health, family ties, employment, financial resources, community ties, criminal history and potential danger to the public.
Courts must also consider whether alternatives to pre-trial detention are suitable.
Evidence produced at a bail hearing cannot be submitted at trial except in impeachment or perjury inquiries.
“The goal is to have the right people in custody for the right reason for the right amount of time,” said Vicki Becker, the Elkhart County prosecutor. “It is not just checking boxes and putting a rubber stamp on things in order to forward different agendas.”
How does bail currently work?
Each county sets its own bail schedule to guide judges as they determine how much a defendant should pay to stay out of jail before trial.
Marion County Superior Court, for example, sets bail at $50,000 for serious felonies, though the defendant may pay far less through a licensed bail bondsman who pays the remaining balance so long as they attend their court hearings.
Murder is not eligible for bail, while defendants charged with misdemeanors or non-violent felonies like marijuana possession are typically released on their own recognizance or without bail.
Aggravating factors like possession of a deadly weapon, inflicting serious bodily injury or a history of felony convictions may result in higher bail.
Bail schedules are advisory, with some counties opting for much higher amounts: In Elkhart County, the schedule calls for $150,000 bail for Level 1 felonies.
Judges can order a defendant back to jail if they’re arrested again or violate the terms of release.
“The purpose of bail right now is to make sure people show up to court,” said Mike Cunningham, a criminal defense attorney in Franklin who opposes the proposed amendment. “That’s it. That’s the purpose.”
Cunningham said judges already have the discretion to order a defendant to wear an ankle monitor or not possess a firearm while on pre-trial release, or set bail high enough to make sure defendants appear for their court hearings.
“We’re in a system that works,” he said.
The Indiana Criminal Justice Institute found 7% of defendants released on bail or their own recognizance statewide last year were rearrested and charged with a new offense while awaiting trial.
Focus on repeat offenders
Rearrest rates vary by county and release conditions: The report found 32% of the 399 defendants released on bail in Allen County last year were rearrested while awaiting trial, while 24% of the 2,200 defendants released without bail were rearrested.
A second public question will also be on your ballot. It would allow judges of city or town courts to live outside the jurisdiction. The exact wording is: “Shall the Constitution of the State of Indiana be amended to permit the judge of a city or town court to reside in: (1) the county in which the court is located; or (2) the bordering county closest to the city or town in which the court is located?”
In Boone County, the rearrest rate was only 4% for the 1,183 defendants released on bail and 0.6% for those released on their own recognizance, though 20% of defendants released under unknown conditions were rearrested while awaiting trial last year.
Dearborn County claimed the lowest rearrest rate at 0.3%, with only 595 defendants released on bail.
An analysis of Indiana Office of Court Services data reviewed by the American Civil Liberties Union of Indiana, which opposes the amendment, found few of these defendants commit new violent crimes while awaiting trial.
Still, Becker said prosecutors became increasingly concerned about bail reforms adopted in recent years, which she said were applied inconsistently across the state, with some counties not prioritizing public safety in those decisions.
“One of the things that was really a catalyst in trying to push legislation through over the last few years to try to balance this out was the fact that so many individuals that were out on bond or that had pending cases were back out in the community without any accountability whatsoever and continuing to commit offenses against other people,” she said, “and it just did not sit well with prosecutors who are much more focused on protecting public safety.”
What evidence would be needed?
While the amendment requires “clear and convincing evidence” a defendant is too dangerous for bail, how judges determine this standard could vary based on available evidence and their own judgement.
Prosecutors may present video, audio recordings or witnesses to the offense, but Becker said the most likely source of evidence will be the court record itself.
“We can articulate the person was under supervision or had a pending case or had other factors that had been imposed by a court,” she said.
The defense would then have the chance to cross-examine witnesses, but Cunningham said attorneys often don’t have access to much evidence from discovery at this stage.
He worries judges may accept weak evidence or that lawmakers may rewrite standards outlined in SEA 2, despite assurances from supporters who say everyone will follow their best judgement.
“When it’s my job to make sure that the government is doing what they are required to do in black and white under the law, I don’t know that it’s going to be like that. And if it’s not, then what does that mean? Does that mean the government is really presenting the evidence necessary to meet their burden, or are they going to start cutting corners? Are judges going to start accepting the least bit of evidence? And then what do you have? You’ve got people sitting in jail based on what — not a whole lot.”
The amendment isn’t limited to serious felonies either.
A 19-year-old charged with misdemeanor reckless driving for driving too fast could be held without bail if the judge or prosecutor “want to send a message,” Cunningham said.
Defendants may in turn feel pressured to plead guilty to avoid weeks or months in jail without trial, he said.
“I’ve heard the phrase ‘sticks and stones may break my bones, but words will never hurt me.’ Not under this new constitution,” Cunningham said. “It can. It can keep you in jail for a long time.”
But Becker said it’s not that simple.
“This does take a person’s liberty away … Everybody just needs to remember that one person’s right ends where another person’s begin,” she said.
Indiana Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.
