Indiana voters will decide whether to change the state’s constitution to allow courts more opportunities to deny bail to those they believe pose a risk to public safety or an individual’s welfare.
Currently, Indiana law only allows bail to be denied in two circumstances: in cases involving murder or treason.
This effort to change the state constitution has been underway since 2023. To get a public question on the ballot in Indiana, it must pass the state legislature twice. The General Assembly first passed the amendment in 2023 and then passed it again earlier this year.
If approved, Indiana would join 24 other states that have amended the right-to-bail language in their constitutions to expand pretrial detention.
If voters approve the change, prosecutors would then need to prove with “clear and convincing evidence” that the individual poses “a substantial risk” to public safety and that no release conditions, including bail, could protect a person or the community.
Opponents of the change say Indiana’s language is too ambiguous, and some worry it will violate an individual’s right to be presumed innocent until proven guilty.
“Consequences happen under this system before guilt is even established,” said Danielle Drake, an advocacy manager at the ACLU of Indiana.
Sen. Eric Koch (R-Bedford), who has been leading the charge for the constitutional amendment, said he believes the ballot language would require prosecutors to meet a high bar.
“So concerns about people languishing in jail and so forth are really not there,” Koch told WFYI.
What is public question #1 on Indiana’s ballot?
Here is the language that will appear on the ballot for the first public question:
"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.)"
If voters vote “yes” on the question it could allow judges to deny bail in more circumstances. If voters vote “no” then Indiana’s current bail process would stay in place.
Bail reform in other states
If the change is approved, the ACLU says Indiana would be an outlier among states that have expanded pretrial detention because the amendment language is so broad.
“We know that when applied, it doesn't have to be limited to violent crimes in particular in its practice, and the language that's being presented to voters doesn't actually expand upon certain offenses either,” Drake said.
In Tennessee, voters are also considering a change to their state’s bail process this election, but their amendment lists specific crimes that could be denied bail, like second-degree murder, aggravated rape and grave torture.
Few states have adopted language as broad as Indiana's proposal, but in New Jersey in 2017, a change also allowed for bail to be denied in any case when someone’s reappearance in court isn’t assured or the public’s safety is a concern.
However, prosecutors say the burden of proof they must meet to show a person should be denied bail won’t be easy to meet in every case.
“We're going to have to show that pattern, that history, and that there's just really no other option for the court that's going to protect the community,” said Wes Schemenaur, president of the board for the Indiana Prosecuting Attorneys Council.
Schemenaur is also the prosecutor for Jay County and told WFYI they want to ensure due process is followed for every accused person.
“This is not just a slam dunk or a rubber stamp or a guarantee that that's going to happen,” Schemenaur said. “There's still going to be a neutral judge.”
Supporters of the ballot question also say Senate Enrolled Act 2, passed earlier this year, lays out how prosecutors would make their case, what evidence judges must consider, and what rights defendants would have during detention hearings.
Those in the public defender's office, however, say this change isn't needed since judges can already set very high bail amounts.
Ray Casanova, the chief public defender for Marion County, says the county's bail matrix sets a minimum bond of $10,000 for some major felonies. Judges can then add to that for other circumstances, such as if the accused used a weapon.
“For all practical purposes, we currently have a de facto preventive detention bail system in Marion County,” Casanova said.
He is also concerned that if individuals are detained pre-trial, that means they have a greater chance of losing their jobs, housing and services they were receiving before being arrested.
What research and rhetoric says about withholding bail
The ACLU of Indiana has pointed to data from the Indiana Criminal Justice Institute that shows the vast majority of those who are released on bail do not reoffend, and those that do tend to be for nonviolent crimes.
Its latest 2025 data show that of the 81 counties analyzed, about 7% of those released on bail were rearrested. However, that data excludes Marion County.
Prosecutors can also revoke bail if someone commits a new offense while out, but Schemenaur says by then it's already too late.
“It's important to have that ability just to prevent even one tragedy from occurring,” Schemenaur said.
That’s at the core of public safety concerns that have, in part, driven this proposed constitutional change. Sen. Aaron Freeman (R-Indianapolis) has long argued that so-called “catch and release” policies have influenced public safety, especially in the capital city.
Others including Sen. Cyndi Carrasco (R-Indianapolis) have referenced a “revolving door” of justice that releases offenders who commit crimes while awaiting trial. The argument being that withholding bail could prevent such crimes.
However, stopping crime before a trial doesn’t necessarily reduce reoffending going forward.
Eric Grommon is an associate professor of criminal justice at the O'Neill School at Indiana University at Indianapolis. He told WFYI that studies show pre-trial detention lowers the likelihood of rearrest while awaiting trial, but increased recidivism within two years after a case is settled largely offsets that effect.
Other studies show that while pre-trial detention decreases pre-trial crime and failures to appear in court, it significantly increases guilty pleas.
“I think the big question that voters are going to have to wrestle with is whether or not the state should have the power to incarcerate somebody who's not been convicted of an offense because of what we believe that person might do,” Grommon said.
Concerns over implementation without proper training
Headlines have noted that Indianapolis and the nation as a whole have seen a drop in homicides in recent years and an overall decline in violent crimes over the past decade.
However, those who work at the Indiana Coalition Against Domestic Violence told WFYI that isn’t the case for domestic violence homicide cases.
According to ICADV’s most recent lethality trends study across all 92 Indiana counties, high-lethality cases appear to be increasing. The survey also found that in 2025, 100 individuals died due to domestic violence fatalities. Advocates said rates are trending even higher this year.
Caryn Burton is a homicide reduction strategies coordinator for the coalition and said that while the change to the bail process under the constitutional amendment could be promising for domestic violence victims, it will only work if proper training is provided to judges on how to evaluate risk in those kinds of cases.
Burton said Indiana currently doesn’t have an evidence-based, standardized tool for courts to evaluate bail considerations in domestic violence cases. Without this tool, she worries that victims won’t get the help they need and those being accused could be unnecessarily denied bail.
“That is ultimately what this is saying. If the judge has reason to believe, well, what's the reason to believe?” Burton said. “Let's base that on actual factors rather than a vibe check by the judge.”
She said another significant obstacle is the siloing of judicial jurisdictions.
“One of the big issues that we see repeatedly is that systems don't talk to each other, and particularly county to county, but even systems within a county do not talk to each other in a timely manner,” Burton said.
Associate Professor Gromann also worries that the new law will be applied unevenly across the state.
“In my experience working with different counties in the pretrial space, we're going to be all over the board,” Grommon said. “It's going to be 91 different systems where we don't know what's working and what's not.”
Indiana’s general election is Tuesday, Nov. 3. Marion County voters can vote early now at the city-county building.
Contact Government Reporter Caroline Beck at cbeck@wfyi.org
