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Since 1851, the Indiana Constitution has guaranteed a fundamental right to Hoosiers: the right to bail for any criminal charge other than murder or treason.. Come November, this 175-year-old pillar of Indiana’s criminal justice system will be on the chopping block. Senate Joint Resolution 1 will ask voters to surrender this constitutional right in favor of “allow[ing] anyone who’s deemed a public safety threat to be held indefinitely” — a practice known as preventive detention.
SJR 1’s author, Sen. Eric Koch, R-Bedford, framed the resolution as “a great step toward ensuring our communities are protected from those who pose a threat.” But Sen. Greg Taylor, D-Indianapolis, condemned the bill for allowing judges to jail anyone “not based on what they’ve done, but who they are.” Lonnie Randolph, D-East Chicago, voiced similar concerns with the leeway the bill grants judges in determining a person’s dangerousness. Indeed, under the bill, the nature and severity of the underlying crime is not dispositive.
Consider Ben, a 19-year-old Hoosier arrested on a Friday for his first criminal offense — shoplifting a $100 item. Thanks to Indiana Criminal Rule 26’s prompt-release directives, if bail is set, Ben can post a nominal cash bond to be released that night. He returns home for the weekend and can arrange his school, work, or family schedule around his upcoming initial hearing. Any disruption to his daily life is minimal and proportionate to the crime.
But, if SJR 1 and trailer bills pass after appearing on November’s ballot, the state can file a motion upon Ben’s arrest to deny bail before the initial hearing, triggering the 48-hour clock within which a court must set a “dangerousness” hearing. Weekends are exempt — the clock only starts ticking Monday morning, so Ben’s initial hearing is set for Wednesday. Instead of returning to his family, to school and to work, Ben spends three nights in jail. Come Wednesday, the state can request a three-day continuance. The weekend is exempt; Ben’s hearing is pushed to the following Monday. Ben will have spent 10 nights in jail for petty theft without any finding of actual dangerousness.
Further, a judge presiding over Ben’s hearing can prolong detention based on his “character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, and criminal history.” Was Ben unable to take his medications while in jail for 10 nights? Did Ben lose his job because he was in jail for 10 nights? Does this manifest as negative character, mental condition or job insecurity supporting confinement? To answer these questions, the judge has little more information than the state’s motions that public defenders often must prepare for in mere hours or days.
Hoosiers should vote against SJR 1’s constitutional amendment for myriad reasons: It strips us of a fundamental right, destabilizes our criminal justice system and is unnecessary to address public safety. But one fatal flaw precedes the others: The ballot language the legislature chose for the bill is confusing at best and deceitful at worst. Indiana legislators ignored their duty to present a constitutional question to the public clearly and honestly. Their failure corrupts the integrity of the voting processes core to our democracy.
SJR 1’s ballot language as it will appear in November as Public Question #1 scores poorly across various readability indexes. At best, only those with a college junior’s education level can understand it; at worst, only those with a professor’s reading level can. Yet, as Rep. Victoria Garcia Wilburn, D-Fishers, concernedly pointed out during House committee hearings, the average Hoosier reads at a sixth-grade level. Thus, PQ 1 is digestible by only 25% to 35% of voting-age Hoosiers.
PQ 1 asks voters whether the Constitution should be amended to deny bail if “the proof is evident or the presumption strong” and the state proves by “clear and convincing evidence” that no release conditions will protect the community. It may be immediately apparent to an attorney that the latter burden of proof is lower and easier to meet than the former threshold. But to anyone else, the amendment may read as imposing an additional condition to meet before denying bail, thereby making the prosecution’s job harder. Nowhere does the text attempt to cure this defect by defining these levels of proof. Voters are left to subjectively interpret technical legal standards at the ballot box: “strong” could just as plausibly mean “robust” as it could mean “impenetrable”; “convincing” could just as plausibly mean “telling” as it could “incontestable.”
Next, PQ 1 focuses entirely on what voters will allegedly get — safety — and obscures what they will lose — a fundamental constitutional right. It is no accident that the last sentence a Hoosier reads before checking “Yes” or “No” emphasizes individual and community safety, reading more like, “Do you want to feel safe in your own home?” To cure this bias, the Legislative Counsel Zachary Stock suggested that the ballot question make explicit that currently, “a person charged with any other offense [than murder or treason] is entitled to be released on bail.” No Senate or House committee member entertained his suggestion.
Several deliberate word choices frame the amendment positively. Consider the question: “Shall the Constitution … be amended to provide that a person charged with an offense other than murder or treason is not entitled to bail if [conditions are met]?” “Provide” connotes intentional, proactive supplying of needs, resources or information to make “something wanted or needed” available. But SJR 1 does not “contribute,” “give,” or “supply,” as synonyms of “provide” would suggest. Instead, SJR 1 aligns with the antonyms: It “take[s] away” a constitutional right. Indiana legislators carefully worded PQ 1 so voters would read between the lines — this amendment is desirable.
Additionally, PQ 1 designates the gamut of crimes that would become non-bailable as any crime “other than murder or treason,” implying that some chargeable crimes could be worse than murder. But every crime other than murder is a lesser crime. In truth, SJR 1 makes it legal for a person accused of any crime “lesser than murder” — from littering to petty theft to trespass — to be held without bail. Even preserving the denial of bail for treason, a good-faith description of the crimes that SJR 1 sweeps into its orbit is easily rephrased as “any non-treason offense lesser than murder.” Instead, PQ 1 obscures just how much conduct SJR 1 covers.
SJR 1’s attempt to expand courts’ power to deny bail no matter the crime contradicts a nearly two-centuries-old command that innocent-until-proven-guilty Hoosiers may post bail for all but the most serious crimes. Yet, despite American literacy rates declining to levels not seen in 25 years, the Indiana General Assembly has ensured that, come November, two-thirds of voting-age Hoosiers will not be able to understand a question affecting their liberty. If a voter cannot understand what they are voting for, how can that vote be voluntary? If democratic results are not voluntary, how can our government be “by the people”? How can it be “for the people”?•
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Salet is a J.D. candidate at IU Maurer School of Law.
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