09/04/2026
I know I’ve posted on this topic recently but here is a counterpoint to an article published on August 7, The Indiana Lawyer opposing the amendment. This article is my response addressing the opposition’s arguments and explaining why this carefully limited, due-process-based measure will protect both public safety and individual liberty. Enjoy and consider.
INDIANA’S CONSITUTION HAS ALWAYS BALANCED LIBERTY AND PUBLIC SAFETY. THE BAIL AMENDMENT PRESERVES THAT BALANCE.
By Loren Delp
(This article is in response to the article published on August 7, 2026, “Ballot Measure Could Nix Constitutional Right Pitched for Safety”)
Opponents of Senate Joint Resolution 1 (SJR 1) invariably begin their argument by noting an important principle: Indiana’s Constitution has protected a right to bail for more than 170 years. That statement is paltering as it is also true that the right to bail has never been absolute.
Under Indiana’s first Constitution in 1816, bail was guaranteed except in situations where an individual was charged with capital cases with evident proof and presumption great.
Ironically, just thirty-five years later as the result of inadequacies in amendment process and in response to a dramatic increase in population Hoosiers in 1851 drafted a new
constitution where they expanded the exceptions to bail to include those charged with all murders, now including noncapital murders. Today, these exceptions remain in Indiana law
as a person charged with murder may be held without bail when the proof is evident or the presumption strong.
Additionally, under long standing precedent, Indiana permits detention or bail revocation in several other circumstances. A court may revoke bail when a defendant threatens a victim,
witness or juror; attempts to destroy or conceal evidence; violates release conditions; fails to appear; or commits another qualifying offense while already released to name a few.
Under I.C. 35-33-8-6.5 Hoosiers have long recognized the need for a “cooling off” period where defendants arrested for domestic battery offenses must be denied bail for a mandatory period before release. And people arrested for extradition may be denied bail in
serious cases.
To be clear these provisions do not all operate in the same way. Some involve temporary detention, while others involve revoking a release that was previously granted. But they
demonstrate an important point: Indiana has never treated pretrial release as an unconditional right there have always been exceptions. The law already recognizes that a person’s conduct and demonstrated risk may justify such an exception.
SJR 1 follows the same tradition those framers used in 1816 and 1851. It would allow current and future criminal justice practitioners to address a narrow category of cases: defendants who present a serious danger and for whom no reasonable release conditions would adequately protect the public. That is not the same as making every offense nonbailable.
Consider the article’s example of “Ben” , a 19-year-old first-time shoplifter. If Ben has no criminal history, no record of violence and no evidence suggesting that he threatens
anyone, those facts would not satisfy the proposed standard. The state would have to prove much more than the fact that he was charged. Under these facts no prosecutor, ever,
would seek for someone like “Ben” to be preventatively detained and no judge, ever, would so order.
Under SJR 1, the state would have to establish that the evidence of the charged offense is evident or the presumption strong. It would then have to prove by clear and convincing
evidence that the defendant poses a danger and that no combination of release conditions could reasonably protect another person or the community.
Any party can file a motion in a case. The state and the defendant can file motions that courts can ultimately accept or reject as the law demands. But filing a motion would not establish the legal standard or guarantee detention. The judge would have to evaluate the evidence and make an individualized decision.
The proposed amendment also would not authorize indefinite detention.
Defendants may only be held so long as that case pends, meaning when the case is decided the defendant may not be held unless found guilty and sentenced. Additionally, Indiana’s speedy-trial rules impose firm limits on how long a jailed defendant may remain in custody as the case is pending. Under Criminal Rule 4(A), a jailed defendant generally must be brought to trial within 180 days, excluding delays attributable to the defendant, court congestion or emergencies. If the deadline expires without an authorized exclusion,
the defendant must be released on recognizance. These same speedy trial rights are not extended to crime victims however.
Criminal Rule 4(B) provides an even faster route for a defendant who demands an early trial. After the motion is filed, trial generally must begin within 70 calendar days, subject to recognized exclusions. If the state fails to meet that deadline, the defendant may seek dismissal of the charge. Those rules do not eliminate every possible delay. A defendant themselves may cause delay, courts may experience genuine congestion and emergencies may occur. But the
system does not give the government unlimited time. It requires the prosecution and the courts to move the case forward promptly.
The proposed legislation would also provide procedural protections, including counsel, an evidentiary hearing, the opportunity to present and challenge evidence, written findings, continuing review and appellate review. Detention could not rest solely on a prosecutor’s
allegation or a judge’s instinct.
The current system creates another problem. In a few counties when a judge believes a defendant is dangerous but cannot formally deny bail, the court out of necessity may set
an extremely high cash bond in an effort to hold the dangerous defendant pretrial. In some instances, a wealthy defendant might be able to pay it and abscond. An indigent defendant
cannot. The result is a system in which money, rather than actual risk, determines who remains in jail.
Preventive detention would require the state to confront the real issue directly: Is this defendant so dangerous that no reasonable release condition can protect the victim, witnesses or community? That approach is more transparent than using an unaffordable bond as a substitute for
detention. It also fits with Indiana’s broader move toward evidence-based pretrial decisions. Criminal Rule 26 was designed to prevent low-risk defendants from remaining jailed simply because they lack money. That principle should remain intact. But a fair system must also account for the rare defendant whose risk cannot be managed through supervision, monitoring, treatment, no-contact orders or other conditions.
And what about victims? Preventative detention is also a victim’s rights issue. Victims should not live in fear that a demonstrably dangerous defendant will return to threaten, retaliate or further harm them while the case is pending. That fear can drive victims from their homes, interfere with their work and family life and ultimately discourage them from participating in the prosecution.
Protecting liberty and protecting the public are not mutually exclusive goals.
The presumption of innocence remains essential. It determines whether the state may ultimately convict and punish a person. But it has never prohibited reasonable pretrial
restrictions. Indiana already permits arrest, bail, electronic monitoring, home detention, no-contact orders and, in limited circumstances, detention without bail.
The question presented by SJR 1 is therefore not whether liberty matters. Of course it does. The question is whether a court should be required to release a defendant when the state
proves that the person presents a serious danger and that no available release condition can reasonably protect others.
SJR 1 would not make preventive detention automatic. It would not shift the burden to the defendant. It would not permit detention based solely on a charge, a person’s identity or a
prosecutor’s request. And it would not eliminate speedy-trial protections.
It would give judges a very limited tool for exceptional cases. A tool governed by a demanding burden of proof, procedural safeguards, judicial findings, appellate review and
strict time limits.
The question before Hoosier this fall is not whether every defendant should be jailed, it is whether criminal justice practitioners should be powerless to protect victims and the public when clear and convincing evidence shows nothing else will work. Due Process and public safety are not opposing principles and SJR 1 protects both.
(Loren Delp is the elected prosecutor in Hendricks County has worked for over a decade on preventative detention through statewide working group, lectures, commentaries and
legislative advocacy throughout Indiana.)
SJR 1 follows the same tradition those framers used in 1816 and 1851.
