Indiana’s Constitution is getting a workout

The Indiana Constitution is having a moment. 

Abortion bans are pitted against “life, liberty, and the pursuit of happiness.”  The Governor’s constitutional prerogatives were recently vindicated, and the General Assembly is actively considering no fewer than four proposed constitutional amendments. 

One proposal, Senate Joint Resolution 1, would restrict an ancient liberty that predates the United States. And all of this in less than 12 months. It’s a lot.  

Of course, the constitution is adaptable, but it is not a super statute to be tweaked whenever we think we have a good idea.  Instead, as James Madison observed, a constitution is the greatest of all reflections on human nature. If future archeologists only find the constitution in the ruins of our long-gone civilization, they will know a great deal about how we treated one another, what we prioritized, and the nature of our human frailties. Hopefully, they will see, as Frederick Douglas saw, “a glorious liberty document.”

What is interesting is how the constitution protects liberty. The document recognizes that we can be reliably trusted to pursue one thing: our own interests. Often, we are well-intentioned, but eventually, even our loftiest goals will conflict with the good intentions of others. Majorities will overrun minorities, and the quest for security will run roughshod over liberty. The genius of the constitution was to harness self-interest. Ambition was made to counteract ambition, and a perpetually adversarial process was set into motion.  

For instance, in the criminal justice system, we want prosecutors to prosecute, but we also want defenders to defend. The power to incapacitate the dangerous quickly becomes the capacity to harass the undesirable. Thus, the constitution guarantees the accused a right to counsel and to confront his accusers. The suspect cannot be randomly searched or arrested, and she cannot be condemned until a group of her peers has been convinced of her transgression beyond a reasonable doubt.

In short, everyone is innocent until the state has carried its hefty burden. This is a fundamental check and the constitution’s bedrock statement of principle.

The constitutional right to bail is part and parcel of this principle. It prevents punishment before guilt and allows the accused to help prepare his defense. Its roots extend to Magna Carta, and it was a celebrated right in colonial America. Senate Joint Resolution 1 would change this traditional value and threaten the presumption of innocence. It promises to throw the constitutional balance out of whack.  

Too much risk

Indeed, even now, the constitution cannot curtail the prison state. By one estimate, the liberty of more than 160,000 Hoosiers is being actively restricted. And some estimate that more than 80% of people jailed nationwide are awaiting trial. By denying bail to anyone who is “a substantial risk to the public,” whenever “proof is evident, or the presumption strong,” the proposed amendment will inevitably drive this number even higher.  

The new language is simply too open-ended. It does not define what constitutes a substantial risk to the public, and it does not describe how the determination is to be made. For many people, anyone accused of a crime is a substantial risk. In fact, an activity that poses a substantial risk to the public might be a good general definition of criminal behavior. Under Senate Joint Resolution 1, therefore, the relevant question could be whether anyone is entitled to bail. And we do not know how or when judges will make such a determination. Will it be days after arrest? Weeks?  

Proponents of the measure argue that an enhanced sense of security justifies such a paradigm shift. But if a sense of security is the goal, any number of Draconian constitutional changes could be envisioned. Moreover, this proposal comes at a curious time.

In 2020, the overall violent crime rate was the lowest it had been since 2013. At the same time, many of our jails are full given the nearly 500% increase in the jail population between 1980 and 2019. And there are currently laws on the books that allow judges to consider an accused person’s dangerousness when setting bail. Clearly, we don’t have a problem keeping people in jail, even with a constitutional right to bail.  

So, after more than 170 years of a right to bail in the State of Indiana, why change now? Have our values changed so that we value security more than liberty? If so, by all means, change the constitution. If not, we should probably slow down. The constitution could use a rest.