Public Question 1 Puts Indiana's Constitutional Right to Bail Before Voters

This November, Indiana voters will face a question on their ballot with significant implications for the promise of "innocent until proven guilty."

Public Question 1 will appear on every ballot statewide, asking voters to decide whether to expand the government's power to deny bail to people awaiting trial if a judge determines they pose a threat to public safety, before they've even been convicted of a crime.

Constitutional ballot amendments make lasting changes to our state’s Constitution, which has been amended fewer than 50 times in more than 200 years.

Public Question 1 asks voters to change Article 1, Section 17 of the Indiana Constitution, which protects the right to bail. Currently, people charged with crimes other than murder or treason generally have a constitutional right to bail in our state. If passed, the amendment would allow judges to keep people in jail without bail for a wider range of crimes.

The amendment doesn't specify a single offense that would qualify someone to be denied bail. No list of violent crimes, no limits based on the seriousness of the charge.

States like Texas and Tennessee, which have pursued similar constitutional amendments, specifically named serious, violent offenses. Indiana lawmakers chose not to include those same restrictions, making this especially extreme and broad.

“The very foundation of our criminal legal system is built on the promise that someone is innocent until proven guilty. The extremely broad language of Public Question 1 leaves the door open for people accused of even minor offenses to be held in jail without bail. We already rely too heavily on incarceration, and expanding pretrial detention is no substitute for real public safety solutions.”

The consequences of being held in jail before trial can be devastating. People can lose their job, fall behind on rent, miss medical appointments, or be separated from their children and family. Even if their charges are eventually dismissed or they're found not guilty, those losses cannot simply be undone.

Racial disparities are already deeply rooted in Indiana's criminal legal system. Black Hoosiers make up just 9% of the state's population, but 31% of its prison population, according to the Prison Policy Initiative. Expanding the power to deny bail raises concerns that more people could be held in jail before trial, exacerbating existing racial inequities.

Raymond Powell, executive director of the Mumineen Community Development Corporation and a formerly incarcerated Hoosier, raised concerns about how these decisions could disproportionately impact Black Hoosiers.

“The people that, in my opinion, that's going to suffer the most from this, we already know Black Americans are disproportionately incarcerated than any other ethnicity in the country, right?” Powell said. “And on any given day, one out of three Black men are in prison...There are not a lot of peers, judges, that you go in front of that understand your condition, your mental health condition, your social determinants of health. A lot of that stuff is not going to be evaluated. You're going to be looked at like what the image that is being portrayed on TV.”

Watch Powell discuss pretrial detention and its consequences here.

Indiana judges aren't powerless under the current system; they already have many tools to address public safety concerns, including supervision, no-contact orders, and electronic monitoring. Indiana law even already gives judges the authority to increase or revoke bail when someone poses a risk to public safety (IC 35-33-8-5). Public Question 1 would allow someone's freedom to sit in the hands of a single judge, raising prominent concerns about due process rights, bias, inconsistency, and inequity on the decision of who gets to go home and who stays behind bars.

Changing Indiana's Constitution is not easily reversable; it's intentionally difficult to do. An amendment must pass the state legislature twice, with an election between, before voters even get a say. Now, Hoosiers will decide whether that change will become part of our constitution.

Here's what voters will see on their ballots this November:

"Currently, under the Constitution of the State of Indiana, a person charged with murder or treason is not entitled to be released on bail if the proof is evident or the presumption strong. Shall the Constitution of the State of Indiana be amended 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.

(This question concerns Article 1, Section 17 of the Constitution of the State of Indiana.)"

In plain words:

• Voting YES means changing Indiana's Constitution to allow judges to deny bail in more cases, even before someone has been convicted of a crime.
• Voting NO means keeping Indiana's current constitutional protections for bail in place.

Indiana Voters should know what they are being asked. Before casting your ballot for early voting or on Election Day (November 3), take a few minutes to understand what this proposed change could mean; Hoosiers' freedom depends on it.

Learn more here.