OPINION: Indiana’s proposed bail reform misses the mark

Editor’s Note: All opinions, columns and letters reflect the views of the individual writer and not necessarily those of the IDS or its staffers.   

In the United States, you are innocent until proven guilty — but that doesn’t mean you’re free.  

Today, roughly 70% of people held in local jails have not yet been convicted of the crime they have been charged with. Over the last 25 years, the growth of incarcerated populations has been almost entirely driven by an increase in pretrial detention — people who must remain in jail from their arrest until their trial.  

For the roughly 426,000 people detained without trial, bail requirements are the primary barrier to freedom. Bail is usually set during arraignment — the first time a defendant appears in court. At arraignment, defendants are read their charges and enter an initial plea. Under current Indiana law, judges can only deny bail to defendants charged with murder or treason. In all other cases, judges either release the defendant or set cash bail.  

Defendants who cannot afford to post bail must remain in pretrial detention until their court date. The median bail for a felony is $10,000, while the median income for a pretrial detainee is $15,000 a year. That’s eight months of income — and it leads to significant disadvantages for low-income defendants — who sometimes plead guilty just to avoid extended pretrial detention. 

Indiana’s Public Question One, a proposal to reform the state’s bail system, is on the ballot in November. The amendment would remove the right to bail in cases where: 

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.

Removing the right to bail in more cases would increase the pretrial detention population, since more defendants would be detained pretrial, regardless of their ability to pay. Indiana’s criminal justice system is already overcrowded and underfunded, and this amendment could only exacerbate that. 

Statewide, the Indiana Department of Corrections already operates at 95% capacity. Simultaneously, due to lapsing grants, state funding for community corrections is projected to fall 27% from 2025 to 2027 — from $72.5 million to $52.9 million. Locally, the Monroe County Jail has been repeatedly sued the last 20 years for unconstitutional overcrowding, hazardous conditions and deteriorating facilities. 

In other states, bail reform usually takes the opposite approach to Public Question One. In New Mexico, Illinois, New Jersey and Washington D.C., cash bail has been banned. In these states, if you are charged with a nonviolent crime, you will generally be released from pretrial detention without paying bail. 

Lowering or eliminating cash bail would help reduce overcrowding in Indiana prisons. When New York experimented with releasing nonviolent offenders without cash bail in 2020, it reduced pretrial detention by 40%. In the first three months of 2024, 18,600 people awaited trial in Indiana jails. An equivalent 40% reduction would reduce that population by 7,500 people. That change would dramatically reduce overcrowding, bringing capacity from 95% to around 70%. 

The most common argument against eliminating cash bail is that reductions in pretrial detention increase the crime rate. This argument is unsupported by the evidence. A national study of cash bail reforms found no relationship between bail and crime rates — eliminating cash bail didn’t increase or decrease crime rates. These results also imply the opposite, that stricter bail policy would also be ineffective in reducing the crime rate. 

The problems do not stop there, because what qualifies as “evident” proof or “clear and convincing evidence” is largely up to individual judges — decisions with life altering consequences for detainees. 

Detention is an indefinite punishment. Those in pretrial detention are isolated from their families, friends and daily life. They simultaneously experience higher rates of suicide, violence and illness — despite being innocent in the eyes of the law. For people in pretrial detention, denying bail often amounts to a sentence without proof of guilt. 

If Indiana’s government wants to reform the criminal justice system, that requires increasing funding for community corrections programs, not increasing the pressure on an overcrowded prison system. Examples of successful community corrections programs include halfway houses, parole services and drug courts. The goal is to keep people out of the criminal justice system, not trap them in it.