FORT WAYNE, Ind. (WANE) – The Indiana General Assembly is proposing to add an amendment to the state constitution which would limit who would be able to get bail.
The proposal, Senate Joint Resolution 1, passed through the Senate Jan. 26 with a 34-15 vote and is currently being debated in the house. The amendment’s language would say anyone who a judge considers a “substantial risk” to the public would not be entitled to bail.
The amendment would also include that an offense other than murder or treason should not be bailable if the state proves by clear and convincing evidence that releasing a defendant would not keep the community safe.
Critics of the proposed amendment argue that the language is too vague and that it’s still unsure of who would be considered a “substantial risk.” They are also concerned about whether this will result in jails becoming overcrowded and whether people’s constitutional rights could be impacted.
“This bill sets a dangerous precedent in Indiana,” said Katie Blair, director of advocacy and public policy for the American Civil Liberties Union of Indiana. “It expands the reasons why people can be held in jail without bail pre-trial.”
She pointed to the issue of jails in the state already being overcrowded and that this amendment will only make the problem worse.
She argues that judges already have a lot of discretion to hold people in custody and has the potential to increase the risk of racial bias in the state’s criminal justice system.
“Jail really interrupts people’s lives and this is just another way that someone can be held without bail,” she said.
Indiana Senator Mike Bohacek, a Republican who represents District 8 and co-authored the proposal in the senate, said SJR 1’s intention is to give judges more jurisdiction over who gets released from jail and know which defendants should not be out free in order to keep communities safe.
“We know judges understand the merits of cases and the charges placed on defendants,” Sen. Bohacek said. “They know the offenders and this gives them the freedom to do what they know is correct.”
He doesn’t believe this amendment will lead to jails becoming overcrowded and argues it will be targeted towards offenders who are the very worse, specifically violent offenders.
“We’re focusing on people for example who were in possession of a firearm that committed a violent act. This is not going after shoplifters or anyone who committed low-level offenses,” the Senator added.
He said this amendment will not be used very often and will be reserved for major violent crimes committed.
A number of law enforcement organizations in Indiana have expressed support for the proposed amendment including the Indiana Association of Chiefs of Police and Indiana State Fraternal Order of Police.
Allen County Sheriff Troy Hershberger said he does not worry about jails becoming overcrowded if this were to pass.
“People in the criminal justice system start with us and it’s up to the judges to determine who stays in jail,” Hershberger said. “The term “substantial risk” is up to how the judge interprets it by looking at the magnitude of the crime committed.”
He believes if this legislation is about keeping communities safe, then the intent of it makes sense.
“Oftentimes, when you let a violent offender out of jail, their ability to reoffend is higher. Think of a person who committed a mass shooting, would you want to see them back out on the streets or remain in jail and out of the community?,” Hershberger said.
He does understand that this proposal could have an impact on people’s rights because it involves changing the state constitution.
“This really comes down to the safety of the community. The core of this proposal is keeping violent people off the streets and looking at the whole picture,” he said.
WANE 15 reached out to the Allen County Superior Court and a representative declined to comment for this story.