Indiana voters gave judges more leeway to deny bail. Now they have to wait to see the impact.

Indiana judges will soon have broader authority to deny bail to defendants deemed dangerous to the public thanks to a constitutional amendment approved by voters on Nov. 3.

The amendment, also known as Senate Joint Resolution 1, allows judges to deny bail to defendants charged with offenses other than murder or treason. That can happen if the proof of the offense is evident, the presumption of guilt is strong and if the state can prove by clear and convincing evidence that no other release conditions will protect the safety of other people and the community, according to the legislation.

“I think the voters recognized that it’s good public policy first and foremost,” said Sen. Eric Koch, R-Bedford, one of the amendment’s authors.

With voters’ approval, Indiana joins 24 other states in giving judges broader authority to deny bail, according to the National Conference of State Legislatures. Ensuring public safety and curbing violent crime are the key goals for the change. But critics are concerned whether the law will be evenly applied.

While the amendment goes into effect Jan. 1, experts say it might take a few years to determine whether the expanded authority to deny bail makes communities safer.

What factors will be considered?

Senate Enrolled Act 2, the companion legislation that outlines how the amendment will be implemented, details the factors a judge should consider.

They include the nature and circumstances of the alleged offense, the evidence, and details about the defendant, such as the person’s character or criminal history. They also can include other factors such as wanting to assure the arrestee’s appearance in court and community safety.

While the companion legislation provides judges with some guidance for upholding the bail amendment, there is also room for interpretation.

The amendment states a judge’s decision to deny bail should be based on the state providing clear and convincing evidence — or evidence that puts a firm belief in the judge’s mind as defined by “Barron’s Law Dictionary.”

Washington Superior Court Judge Dustin Houchin said what meets that definition will differ depending on which judge is making the decision.

“I think judges are very familiar with the ‘clear and convincing’ standard. I don’t think that’s going to be difficult to apply,” he said.

If bail is denied, the court will issue a written explanation of the reasons.

These decisions can then be appealed to the Indiana Court of Appeals and the state Supreme Court.

The evidence presented during the bail hearing is not admissible at the subsequent trial, but it may be used for impeachment or in prosecution for perjury.

Why was the amendment developed?

Supporters believe the amendment is an important step toward preventing some defendants from committing more crimes while on bail.

Elkhart County Prosecutor Vicki Becker told the Indiana Capital Chronicle last month that the goal for the amendment was “to have the right people in custody for the right reason for the right amount of time.”

In Indiana, about 7% of defendants released after arrest reoffended in 2025, according to a report by the Indiana Criminal Justice Institute.

Houchin views the bail amendment as a step away from a movement to avoid cash bail that had been gaining traction in Indiana for years. He cited an Indiana criminal procedure rule that took effect in 2024 (Rule 2.6 Pretrial Release) and states that, with some exceptions, people who are not deemed a flight risk or a danger to themselves or others can be released without cash bail being paid.

Houchin said he believes the movement away from cash bail has led to more lenient release conditions, which have led to increased violence and crime.

“It’s my belief that this preventative detention constitutional amendment is sort of a reaction to that,” he said.

What concerns may develop?

A coalition of civil rights advocates, labor unions and community organizations organized against Public Question 1. They included Indiana Task FORCE, Indiana State AFL-CIO, League of Women Voters Indiana, ACLU of Indiana, Common Cause Indiana and others.

Following Election Day, the group expressed disappointment in the amendment being approved.

“This amendment threatens fundamental due process and places an unfair burden on working families and under-resourced communities across Indiana,” said Melissa Gruver of Indiana Task FORCE in a press release issued in the early hours of Nov. 4.

Meanwhile, bail bond agent Nick Woods said he believes the amendment could protect some lives and ruin others.

“It does have its right place, if it’s used correctly,” he said. “Attempted murder should definitely have a ‘no bond’ on it. … (The amendment) could also ruin people’s lives where the judge deems that they’re violent, and you know they’re not.”

Woods also said he believes judges have already been using bonds set at high amounts to keep people behind bars while they await trial.

“We’ve seen so many high cash bonds ever since January,” he said. “There (are) people sitting in jail on like a $40,000 cash bond. So judges are kind of using the no-bond situation now because they’re setting these astronomically high bonds where people can’t pay it anyway.”

Sen. Aaron Freeman, R-Indianapolis, one of the amendment’s authors, said he’s not concerned about the potential for abuse, noting the bill was tailored toward public safety considerations.

“Our current system (before the amendment) had the chance of abuse,” he said, noting that the companion bill provides details for how the amendment should be applied. “I’m proud of that work.”

How will this play out?

Indiana University Indianapolis Professor Eric Grommon says it will take time to understand the amendment’s long-term impact on public safety.

“That question about will this create long-term public safety is an empirical one. We’re going to spend years digging into the data to figure out if that actually happened,” said Grommon, the Paul H. O’Neill Professor of Criminal Justice at Indiana University Indianapolis.

Whether the amendment is applied unevenly could affect data measuring it, he noted.

“We’re going to have 91 different judges (from each justice system in Indiana) who are trying to wrestle with ‘How are we going to operationalize substantial risk? How are we going to define that?’” Grommon said. “There’s probably going to be significant variation between counties and what that’s going to look like.”

Indiana joins states including Texas, Alabama, Wisconsin and New Mexico in adopting a modified right to bail, according to the National Conference of State Legislatures.

Grommon highlighted New Mexico’s amendment, which took effect Jan. 1, 2017, as being most similar to Indiana’s version.

The amendment gives judges broad authority to deny bail if the state can prove by clear and convincing evidence that no release conditions will be in the interest of public safety.

In a September 2022 study, the New Mexico Statistical Analysis Center studied the impact of the bail reform amendment on six counties.

Grommon noted this study does not provide a rigorous test of the amendment’s effectiveness, but it does provide elementary evidence of trends. Researchers found, for instance, that new violent offenses increased by 2%, and new offenses overall increased 1%.

In Indiana, Houchin, the Washington Superior Court judge, said he anticipates that the amendment’s implementation will be shaped by the court decisions over the next few years.

“I would anticipate some decisions will get set aside, some will get upheld,” Houchin said. “Sort of the contours of that will shake out, and judges will get comfortable with what’s going to be acceptable and what’s not.It’s going to take some time to get there.”•