ACLU of Indiana Responds to the Passage of Public Question 1

INDIANAPOLIS — Last Tuesday, Hoosier voters approved the passage of Public Question 1, which marks the end of a historic constitutional protection in Indiana.

By rolling back the constitutional right to bail, the State now holds the power to detain legally innocent people indefinitely before they ever have their day in court. This would add to the already seven in 10 people in Indiana jails awaiting trial (Vera Institute). Pretrial detention can have devastating effects on people’s lives. People can lose their jobs, their homes, and access to their family. Even if the charges are eventually dropped or they’re found not guilty, that damage is already done.

The danger of this amendment lies in its dangerously broad language—a flaw the ACLU of Indiana and allied organizations repeatedly flagged during the 2026 session. The law completely fails to specify which charges qualify for pretrial detention, meaning individuals accused of mere misdemeanors or low-level felonies can be locked in jail without the option of bail.

Lawmakers had the opportunity to narrow the scope of this amendment but rejected any changes that would have excluded misdemeanors and low-level felonies.

Under the implementation bill SEA 2, which takes effect Jan. 1, 2027, prosecutors looking to deny bail must:

• Show that there is strong evidence supporting the charges against the person.

• Provide clear and convincing evidence that the person poses a serious safety risk to someone else or the community.

• Show that no other release options, such as supervision or other restrictions, would reasonably protect others or the community.

A judge must then hold a hearing before deciding whether bail can be denied.

SEA 2 also requires judges to consider someone’s employment, finances, family ties, criminal history, and alternatives to detention. If bail is ultimately denied, the judge must explain their decision in writing.

But in a criminal justice system where racial and economic disparities are already rampant, expanding this discretion raises serious concerns about unequal implementation. A person’s race, income, or circumstances should not put them at a greater risk of being held in jail before a trial occurs.

“We maintain our concerns regarding the implementation of Public Question 1,” said Danielle Drake, senior advocacy manager at the ACLU of Indiana. “Placing this power in the hands of individual judges opens the door for discrimination, further overcrowding of our jails, and the destruction of an accused individual’s livelihood. We will continue our efforts to ensure those charged with crimes are afforded their due process and presumption of innocence.”

As lawmakers return to the Statehouse for the 2027 session in January, the ACLU of Indiana urges them to roll back this amendment and fully restore the constitutional right to bail. At the very least, the legislature must urgently revisit SEA 2 to establish strict limits on which offenses qualify for bail denial and mandate complete transparency regarding how often and why Hoosiers are detained.

While Public Question 1 passed, roughly 42% of voters (over 750,000 people) opposed it. That’s a significant share, especially compared to similar amendments in Texas and Tennessee, which passed with 61% and 67% support, respectively. The results show that a substantial number of Hoosiers questioned this expansion of pretrial detention and its implications for their rights.

Our work does not end here; we will remain steadfast in monitoring how this law is enforced, who it targets, and whether our justice system is actually upholding the fundamental rights of those awaiting trial.