Mike Cunningham: Lawmakers jeopardize Indiana’s right to bail

The presumption of innocence is inextricably tied to the right to bail. The right to be free, before legal guilt has been established, is an essential check on the government’s power to punish people based on accusation alone; and it is critical to one’s ability to assist in their own defense and to maintain their livelihood.

Currently, Indiana law requires that all offenses are bailable, except murder or treason, and further provides judges with discretion to balance individual liberty with public safety.

But, in the recently concluded 2023 legislative session, supermajority Republican leaders proposed to amend the Indiana Constitution, in Senate Joint Resolution 1, to allow trial judges to deny bail whenever a person “poses a substantial risk to the public.”

While SJR-1 is well-intended, it will have damaging effects on the presumption of innocence, individual liberty, and public safety.

SJR-1 would establish an arbitrary and capricious bail scheme, because the requirement that bail should be denied when a person “poses a substantial risk to the public” is vague and casts too wide a net. Substantial risk of what? Danger, emotional distress, communicable disease, political beliefs?

Currently, the provision requires no nexus between the “substantial risk” posed and the alleged offense. Low level offenses might not be bailable.

For example, if a person commits misdemeanor theft, but the defendant is a gun-collecting NRA member, a court may find the person poses a substantial risk to the public and must deny bail.

Proposals like SJR-1 would also negatively impact folks who wish to protest government action or speak their mind at a school board meeting. An “unruly” parent could be charged with disorderly conduct, and because of their particular beliefs, might “pose a substantial risk to the public.” They could be held without bail.

Proposals like SJR-1 will likely have further reaching consequences for Hoosier citizens and taxpayers.

The proposal would substantially hinder the presumptively innocent person’s right to prepare a complete defense, to hire counsel of their choosing, and to have a fair trial. When a person is confined, they have far fewer resources and ability to seek and assist counsel in their own defense.

But the state will also face pressure as there will likely be more speedy trial requests. For example, the state – particularly in smaller counties – may be forced to delay their investigation and preparation of more serious cases in order to try misdemeanor defendants held without bail.

Ultimately, such a proposal would be tough on taxpayers as it would inevitably require greater resources to house people pretrial, rather than release them with sufficient sureties prior to trial.

While proponents of a bail amendment claim judges need more discretion to consider public safety and the dangerousness of the accused, when setting bail, judges already have it. In fact, despite proposals like SJR-1, Indiana already has a vibrant bail scheme that properly protects the presumption of innocence and public safety.

For example, Indiana law already allows judges to consider public safety. They may impose restrictions to “assure the public’s safety,” including money bail, restriction on movements and associations, no-contact orders, or requiring pretrial supervision and monitoring. Judges also have discretion to “impose any other reasonable restrictions designed to assure the … physical safety of another person or the community.”

Indiana law also provides for stricter bail conditions for sexually violent predators and violent offenses.

Moreover, if a person is released on bail but then goes on to commit a new crime while on pretrial release, judges can revoke bail and make them sit behind bars until their case is resolved.

Indiana law already appropriately prioritizes public safety and gives trial judges a great deal of discretion in setting bail. The natural result, then, of restricting the constitutional right to bail through SJR-1, would be to eliminate the right to be presumed innocent before guilt has been proven. To preserve the presumption of innocence, and public safety, we should reject any changes to the constitutional right to bail.

Mike Cunningham is chair of the Indiana State Bar Association’s Criminal Justice Section and practices criminal defense in southeast Indiana. This commentary previously appeared at indianacapitalchronicle.com. Send comments to [email protected]