By Michael J. Whitlock, Executive Vice President – Bail Division

Indiana Senate Joint Resolution 1 (SJR-1) proposes to amend constitutional language governing bail and pretrial detention that has remained unchanged since 1851. When Indiana adopted its current constitution, the United States was led by Millard Fillmore, and the nation was in the antebellum era—long before modern policing, electronic monitoring, or large-scale pretrial incarceration. The framers crafted a framework in which bail was a constitutional right, denied only in limited circumstances, reflecting a strong preference for liberty before conviction.

The intent of SJR-1 is clear and broadly shared: to enhance public safety by allowing courts to detain individuals who present a genuine and demonstrable risk to others or the community while their cases are pending. Supporters cite repeat offending and serious harm committed by individuals released pretrial as evidence that existing tools may not always be sufficient. In that respect, SJR-1 reflects a nationwide debate over how best to manage risk without waiting for a criminal conviction.

Under the proposal, judges would be authorized to deny release when the state proves by “clear and convincing evidence” that no conditions of release would reasonably protect public safety. The resolution does not mandate detention, but it does significantly expand judicial discretion by applying this authority to any felony or misdemeanor, regardless of whether the charge involves violence. That breadth raises questions about how the standard would be applied in practice, particularly at the earliest stages of a case when information is incomplete and discovery has not yet occurred.

“Clear and convincing evidence” is a recognized legal standard, but it falls short of proof beyond a reasonable doubt. It may include police reports, alleged victim statements, or prior contacts with the justice system rather than physical evidence or convictions. While judges are trained to weigh such information carefully, the subjectivity inherent in risk assessment has led some observers to question whether expanded detention authority could result in inconsistent outcomes or prolonged pretrial incarceration for individuals who are ultimately not convicted.

Timing and capacity are also relevant considerations. Criminal cases in Indiana often take many months—and sometimes more than a year—to resolve. Increased preventive detention could result in longer pretrial jail stays, adding pressure to county jails already facing crowding, staffing shortages, and rising medical and operational costs. These fiscal impacts would be borne by local governments and taxpayers regardless of case outcomes.

SJR-1 also intersects with broader changes in Indiana’s pretrial system. In recent years, courts have increasingly relied on 10% cash bail and electronic monitoring in place of traditional bail bonds. These approaches are intended to reduce detention, but they also shift accountability away from families, employers, and community stakeholders who historically played a role in ensuring court appearance and compliance. Cash bail deposits and daily monitoring fees can impose financial strain on defendants without necessarily improving appearance rates or reducing repeat offending.

Within this context, bail bonds are sometimes cited as one alternative that combines release with accountability. By involving family members, friends, employers, and licensed bail agents, the bond process places responsibility in the hands of those with a direct interest in the defendant’s behavior. These stakeholders have incentives to encourage compliance with release conditions, attendance at court proceedings, and engagement with treatment or counseling when appropriate. While bail bonds are not without criticism, proponents argue that the model aligns financial and personal incentives in a way that promotes appearance and reduces repeat misconduct during the pretrial period.

Most Hoosiers agree on the underlying goal: communities should be safe, and victims should have confidence that the justice system takes risk seriously. At the same time, defendants awaiting trial benefit from the ability to work, support their families, and prepare their defense—factors that also contribute to stability and reduced recidivism. The challenge lies in balancing these interests while preserving flexibility and fairness.

As Indiana considers SJR-1, some suggest that narrower approaches—such as focusing expanded detention authority on violent offenses or individuals with demonstrated patterns of serious criminal conduct—could address safety concerns more precisely. Others note that statutory reforms may offer greater adaptability than constitutional amendments, which are intentionally difficult to revise once enacted.

SJR-1 reflects a legitimate effort to address real public-safety concerns. Its long-term impact, however, will depend on how Indiana balances expanded judicial authority with accountability mechanisms that encourage court appearance, limit unintended detention, and preserve the presumption of innocence that has guided pretrial justice since 1851.

Indiana Senate Joint Resolution 1 has passed one session of the General Assembly but has not yet passed the Senate in the second session, and if ultimately approved by the General Assembly, the proposed constitutional amendment would be placed on the statewide ballot for a vote of the people.