Two partner bills passed the Indiana Senate Thursday that would amend the Indiana Constitution as it relates to a judge’s authority in setting bail.
Senate Joint Resolution 1, authored by Sen. Eric Koch, R-Bedford, would allow for a constitutional amendment to state if someone commits a crime other than murder or treason, then a judge could deny bail if there is strong evidence against the defendant or if prosecutors present evidence that withholding bail will ensure the safety of others.
Senate Bill 3, also authored by Koch, provides the ballot question language for the constitutional amendment, which would state: “Currently, under the Constitution of the State of Indiana, a person charged with murder or treason is not entitled to be released on bail if the proof is evident or the presumption strong. 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.”
To amend the state constitution, two separately elected state legislatures have to approve a joint resolution. Then, the state legislature has to pass a piece of legislation with the constitutional amendment ballot question, said Indiana University Maurer School of Law professor Jody Madeira.
The resolution to amend the constitution concerning bail passed in the 2023 legislative session. If Senate Joint Resolution 1 and Senate Bill 3 pass this session, voters will be able to vote on the public question in November, Koch said.
Currently, the Indiana constitution requires all defendants to be offered bail unless they are charged with murder or treason, Koch said. In 23 states, courts could deny bail to defendants under certain circumstances and nine states don’t guarantee bail to any defendant, Koch said.
Further, Senate Bill 2, which addresses bail procedures and authored by State Sen. Aaron Freeman, D-Indianapolis, would ensure defendants “have due process protections,” Koch said.
“SJR 1 amends the Indiana constitution to allow courts to hold dangerous suspects without bail if releasing them from jail would threaten the public,” Koch said. “In order to protect Hoosiers from violent crime, SJR 1 would give Indiana’s criminal justice system the flexibility to use a policy that most of the country already enjoys.”
The resolution and the bill are problematic for two reasons: it will raise the county jail populations without additional funding for jails and, if implied loosely, it risks turning pretrial detention into punishment without conviction, Madeira said.
The legislature would be increasing jail costs a year after decreasing county funding through Senate Enrolled Act 1 passed in 2025, Madeira said. Senate Enrolled Act 1 established a new property tax system by saving two-thirds of taxpayers up to $300 on their 2025 property tax bill, while local governments will lose $1.4 billion through 2028.
What’s also concerning, Madeira said, by allowing the judge to deny bail for any crime, there could be a situation where a judge doesn’t like marijuana and is dealing with a marijuana offense. As long as prosecutors say they will present evidence in trial that the defendant possessed marijuana, the judge could decide to hold the defendant without bond, she said.
“In practice, these hearings really happen with little investigation. They happen really quickly. In these hearings, judges rely heavily on hearsay, which can be really problematic,” Madeira said.
When the constitutional amendment was first presented in 2023, it was the year that Illinois’ cash bail law went into effect, Madeira said. It’s possible that Indiana began its change in bail procedure to show it’s tougher than Illinois, she said.
Madeira said it’s likely the pieces of legislation will face legal challenges if passed.
State Sen. Greg Taylor, D-Indianapolis, questioned Koch why the legislature would like to deny bail for all crimes, including a misdemeanor. Koch said that’s not the intent of the constitutional amendment but rather “a larger analysis of the dangerousness of that defendant.”
The argument that the resolution and bill have been proposed to look at the defendant and not the charge “makes this even more egregious,” Taylor said. But, Taylor said he’s glad that ultimately voters will decide if the constitution should be amended to address bail.
“If you don’t think there’s some judges out here that may have a bias in their community of certain people, then you haven’t been to court in Indiana,” Taylor said.
State Sen. Lonnie Randolph, D-East Chicago, suggested the legislature address bail through a statute instead of a constitutional amendment.
State Sen. Rodney Pol. Jr, D-Chesterton, presented an amendment to Senate Bill 3 when it was heard on second reading to include that a defendant of a minor misdemeanor could receive bail. The amendment failed in a voice vote.
When he drafted the ballot question, Koch said his aim was to keep it “accurate, but also as brief as I could and also as neutral as I could.”
Pol said he’s glad that voters will be able to vote on the constitutional amendment.
“I don’t think any of my colleagues, whichever way they vote on this, wants to see violent offenders released to commit crimes when that can be avoided. I think the major concern has always been that the penalty is not abused and that individuals are not set behind the eight ball before they are given their day in court,” Pol said.
For that reason, Pol said he supported Senate Joint Resolution 1 but couldn’t support Senate Bill 3 because he was concerned about how the language would be presented to voters.
Addressing Senate Bill 3, Taylor said the ballot question “is leading” because it doesn’t “tell the whole story.”
“The whole story is this: It doesn’t matter, even from your words, what you’re convinced of or what you’re charged with. It matters who you are,” Taylor said. “You may feel safe in a court of law, Senator Koch, and your constituents may, but if you take a step back and you look at how communities like mine have been treated by this court system … you can’t expect me to stand here and trust the court system with the lives and the freedom of my people.”
Senate Joint Resolution 1 passed the Senate Thursday in a 43-2 vote, with Randolph and Taylor voting against it.
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