New bail legislation aims to weigh due process and public safety

Sen. Eric Koch’s resolution to amend the state’s constitutional bail provision is one step closer to being included on the November ballot, which could mean “preventive detention” becomes a standard for Indiana.

The Indiana Senate earlier this month passed Senate Joint Resolution 1, which represents the constitutional change, and Senate Bill 2, which would establish the state’s new bail procedures if the constitutional amendment is approved. The measures now await consideration in the House.

If Senate Joint Resolution 1 passes the House, it will be placed on November’s ballot as a public question with language that asks voters to decide whether the Indiana Constitution should be changed to “provide that a person charged with an offense other than murder or treason is not entitled to bail if: (1) the proof is evident or the 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.”

Senate Bill 2, if approved, would establish the specific crimes and rules that would allow judges to keep defendants in jail. Because the latter is a law and not part of the constitutional amendment, the Legislature could change those crimes over time.

“If preventive detention is going to happen, and it looks like it’s certainly going to go to the voters, it is absolutely essential that something like Senate Bill 2 pass,” said Zach Stock, legislative counsel for the Indiana Public Defender Council.

But Stock is among critics who fear that broadening the circumstances under which a judge can hold an arrestee in custody before a trial or conviction could violate the defendant’s due process protections.

As The Indiana Lawyer went to press, SJR 1 and SB 2 had been referred to House committees but had not been scheduled for hearings.

Koch and Sen. Aaron Freeman, who authored SB 2, say the measures would give judges more power to keep violent offenders off the streets. Currently, state court rules say that defendants should be released without bail if they do not present a substantial risk of flight or danger to self or others.

Judges can impose bail on those who they believe to be dangerous or they fear won’t show up for court. But judges can only keep defendants in jail without bond if they are accused of murder or treason.

SJR 1 would change that, allowing judges to deny bail to an individual in more cases based not only on the nature of the charged crime itself but also on aspects of the defendant’s personal character.

“It is important to ensure our communities are protected from those who wish to do harm,” Koch said in a statement after the bill passed. “This resolution would allow Indiana to join 23 other states that have passed similar amendments to keep people safe.”

But critics say the proposed change would violate the presumption of innocence that is the backbone of the criminal justice system, while others worry that it could introduce prejudice into the process.

Koch said during a Jan. 22 debate on the bill that bail decisions would be based on an “assessment of the dangerousness of that person.” Sen. Greg Taylor, D-Indianapolis, called that line of reasoning “egregious.”

“If you don’t think there are some judges out here that may have bias in their community of certain people, then you haven’t been to court in Indiana,” Taylor said.

Still, an assessment of an arrestee’s character is not entirely a new concept for pre-trial matters in Indiana.

Several Indiana counties already use pre-trial risk assessments in the process of setting bail to determine whether defendants are at risk of fleeing or are a danger to themselves or others. Those assessments weigh several factors, including an arrestee’s criminal history, the severity of the charged crime, community and family relations, employment and character.

Under the proposed changes, judges could use that information to keep some defendants in jail — something Koch said could prevent additional crimes. During testimony on the resolution, he cited several cases of offenders charged with violent crimes such as battery being released on bail before going on to commit more violent crimes, including murder.

But research from the Indiana Judicial Conference’s Pretrial Services Committee has found that most pretrial misconduct is not deliberate. Its Pretrial Outcome and Performance Measures report — approved in 2022 and revised last year — notes that defendants committing violent crimes while out on pretrial supervision is “rare.”

According to state data gathered by the Indiana Office of Court Services last year and submitted to the state’s Bail and Release Review Commission last fall, 98.6% of assessed high-risk offenders released during the pretrial stage did not commit a new violent crime while on release. For moderate risk offenders, the percentage was 98.9%, and for low-risk offenders, the rate was 99.4%.

Innocent until proven guilty

Supporters of the change say it’s necessary to keep violent offenders off the streets rather than being released back into the community, but critics say judges can make mistakes that could significantly impact defendants’ lives — before they’ve been found guilty.

Mark Spitzer, president of the Indiana Judges Association, told The Lawyer that judges need to have the discretion and tools to make the best decisions they can.

“We would like to have a great deal or maximum discretion to make a decision based upon the law and the facts as we see it, on a case-by-case basis,” Spitzer said.

Preventive detention would be another tool to add to judges’ toolbox, he said.

But Stock, the legislative counsel for the Indiana Public Defender Council, said he has concerns about how the change will affect the state — and country’s — presumption of innocence standard.

“Undermining a perception of the presumption of innocence wasn’t or isn’t worth the benefit they might get from this,” Stock said.

Freeman said SB 2 ensures due process protections are in place for defendants. For instance, the bill provides for speedy bond hearings during which both sides can present their case as to why the arrestee should be released on bond or not.

The bill also allows a defendant to appeal a judge’s decision about bail, which Spitzer considers an important safeguard.

“That right to an appeal is significant,” he said.

Stock said that’s why SB 2 is so important. It provides the “instruction manual” for the courts to determine when someone is eligible for bail or not, he said.

“There has to be a set of due process protections in place for people accused of being an unreasonable risk,” Stock said.

Sen. Rodney Pol, D-Chesterton, voted in support of SJR 1, particularly because it would give the public the final say in whether the bail rules change. But he did not vote in favor of SB 2.

Pol offered an amendment to SB 2 that would have exempted defendants whose most serious offense was a misdemeanor or Level 6 felony (the lowest level) from the change, automatically allowing them bail. But the amendment failed.

He said his goal was to ensure that a bad decision by a judge didn’t “destroy somebody’s life without them ever being convicted [of] a crime by holding them without bail until the day they go to trial.”

During debate on the bill, Pol called the change “a massive, massive switch in our criminal justice system, and I want us to understand what that really, truly means.”

An evidence-based approach

In 2024, the state established the Bail and Release Review Commission to review data on the effectiveness of pretrial release reform efforts in the state and provide recommendations to the governor.

Greene County Prosecutor Jarrod Holtsclaw, a member of the commission, said SB 2 pulls language from the commission’s recommendations, which aimed to give judges more discretion with consideration for victim safety, due process and evidentiary standards.

“The main recommendation was they need to come up with that statutory framework so that if preventive detention — meaning the amendment to the Constitution — was approved by the voters on the ballot, there’s a way for all of us to know exactly how that’s going to work in real life,” Holtsclaw said.

In the commission’s final report, the Public Defenders Council noted seven procedural safeguards that should be included in the bill: a prompt hearing, right to counsel, right to present and cross-examine witnesses, clear and convincing evidence, written findings and reasons for decisions, speedy trial protections and a right to an appeal — all of which the bill currently includes.

The council also recommended expanding the state’s risk assessment system, which was established by the Indiana Office of Court Services to provide the courts with information about an offender’s potential risks and needs so that courts can provide appropriate sentences, supervision and treatment services.

And while public defenders generally oppose preventive detention, Stock said they recognize change likely coming. And they need to prepare.

“It’s kind of a strange line we’re walking,” Stock said. “We’ve kind of focused our attention on making sure that the system that comes in the wake of amending the Constitution is a workable one.”•