Indiana Senate approves bail denial constitution change

Senate Joint Resolution 1 will move to the House for consideration

By: - January 27, 2023 6:30 am

A person behind bars with hands cuffed. (Getty Images)

Indiana’s Senate on Thursday approved a constitutional change that would let judges deny bail to anyone they deem “a substantial risk to the public,” as long “the proof is evident, or the presumption strong.”

Currently, people accused of all offenses except murder and treason have a right to bail.

Proponents — some prosecutors and Republicans — contend that Senate Joint Resolution 1 would prevent repeat criminals from committing additional alleged offenses while out on bail. Opponents — mostly defenders, Democrats and civil rights advocates — say it’s rife with potential for abuse.

“There are actually 31 states, the District of Columbia and the federal system where defendants of certain crimes do not have an express right to bail. We are in the minority,” said author Sen. Eric Koch, R-Bedford, on the Senate floor Thursday.

“Indiana should join … in recognizing that there are times when it is simply too dangerous to public safety to release the defendant before trial under bail or any other conditions,” Koch said.

‘Revolving door’ vs. system vulnerabilities

The majority of Koch’s caucus members — but not all — were behind him.

“I’ve heard for the last three or four years here in Central Indiana over and over again about the revolving door [of] people being arrested for violent crimes and being released,” said Sen. Jack Sandlin, R-Indianapolis. “… We have an opportunity to stop that revolving door.”

Democrats argued that people innocent of the charges against them could be incarcerated pre-trial for long periods of time: under Criminal Rule 4, that’s up to six months, or 70 days if an arrestee files a motion asking for an early trial.

Sen. Eric Koch, R-Bedford, authored Senate Joint Resolution 1 to eliminate the presumption of bail. (Monroe Bush for Indiana Capital Chronicle)

“If the court deems, ‘Well, you had a little bit of a run-in with the law in the past and you run with some folks that are not the best people, so we deem you a risk,'” Sen. Rodney Pol, D-Chesterton, said on the floor. “We’re going to hold you without bail, meaning that you’ll likely lose your job. You may lose your kids, you may lose your family.”

Pleas to “add parameters” fail

Several Republicans defected. The most vocal GOP opponent was Sen. Sue Glick, R-LaGrange, who has served as both a prosecuting attorney and a public defender.

Glick said people often challenged her throughout her legal career for defending people “who are guilty,” but pushed back, saying that public defenders “serve to defend the rule of law.”

“And the rule of law,” Glick said, “is the presumption that everyone who comes before judgment is presumed to be innocent as they stand in the docks.”

Glick criticized SJR 1 as being too vague in terms of what constitutes a “substantial” risk, and a “risk” of what. She argued that Indiana’s hundreds of judges could interpret the proposal’s language differently, and that the General Assembly should build in controls.

Koch’s proposal would add the bolded words to existing language in Indiana’s Constitution:
“Offenses, other than murder or treason, shall be bailable by sufficient sureties, unless the accused poses a substantial risk to the public. Murder or treason, or if the accused poses a substantial risk to the public, shall not be bailable, when the proof is evident, or the presumption strong.”
Source: Senate Joint Resolution 1

“The great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself,'” Glick said, quoting from the pro-U.S. Constitution Federalist Papers.

“Do we let judges fill in the blank or do we, the lawmakers, put those parameters in place and protect those people we have sworn to come down here and protect?” she asked.

The Senate passed SJR 1 with a vote of 34-15.

Five Republicans besides Glick voted it down: Sens. Eric Bassler of Washington, Vaneta Becker of Evansville, Chip Perfect of Lawrenceburg, Jim Tomes of Wadesville and Greg Walker of Columbus.

Democrat attempts to alter the proposal previously failed. One would have narrowed SJR 1’s scope to people accused of “serious violent felonies” who posed a risk of “serious physical harm.” The other would have done the same, plus added a 48-hour bail deadline following arrest and the right to a lawyer at a bail hearing.

Next steps: a “favorable reception” in the House

After the Senate’s passage, the resolution now heads  to the House for consideration. House Speaker Todd Huston, R-Fishers, said Thursday “it makes sense to me and I would guess it’ll probably be a pretty favorable reception over here. He did acknowledge he hadn’t “had a ton of conversations about it yet.”

Sen. Sue Glick, R-LaGrange (Senate Republican website)

Senate President Pro Tem Rodric Bray, R-Martinsville, — who is second author on SJR 1 — said he and his caucus were “open to changes” in the proposal’s language. The two chambers must agree to a final version of every proposal in conference committees.

But he didn’t support changes that would make it more specific, telling reporters that constitutions are “generally vague” and are “defined by court cases and statutes.” SJR 1 doesn’t have any accompanying legislation filling in the blanks this session, however.

If it’s passed in March, the proposal’s journey isn’t over.

Because SJR 1 seeks to change Indiana’s Constitution, two successive general assemblies must approve it: this session, and after a new legislature takes office in 2025.

Then, it would go to ballot in 2026. A majority of Hoosiers would need to support SJR 1 for it to take effect.


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Leslie Bonilla Muñiz
Leslie Bonilla Muñiz

Leslie joins the Indiana Capital Chronicle after covering city government and urban affairs for the Indianapolis Business Journal for more than a year. She graduated from Northwestern University in March 2021, and has reported for the Chicago Tribune, Voice of America and student publications in Evanston, Illinois, Washington, D.C., and Doha, Qatar.