Indiana voters have approved Public Question 1, a constitutional amendment expanding judges’ authority to deny bail to people charged with crimes other than murder and treason.
Under the amendment, a person may be held without bail when the evidence against them meets the constitutional standard of being evident or strongly presumed, the accused poses a substantial risk to any other person or the community, and prosecutors establish by clear and convincing evidence that no conditions of release would reasonably protect the safety of any other person or the community.
In plain language, judges can now hold someone in jail until trial without bail, even when the charge isn’t murder or treason, if the evidence of guilt is strong, the person is found to pose a serious danger to someone else or the community, and prosecutors prove that no release conditions, such as monitoring or a no-contact order, could keep people safe.
Previously, Indiana’s constitutional exception permitting detention without bail was limited to people charged with murder or treason under the specified evidentiary standard.
The change expands the circumstances under which someone can be detained before trial, raising questions about judicial discretion, the presumption of innocence and the potential consequences for communities already disproportionately represented in the criminal justice system.
The question is not only who will be denied bail, but whether Indiana has examined the capacity, cost and consequences of holding more people who have not been convicted of a crime.
The presumption of innocence
A person charged with a crime has not been convicted of one. Yet, under this amendment, someone who has not been found guilty can remain incarcerated while awaiting trial, without the option of posting bail.
Although the amendment does not eliminate the legal presumption of innocence, it raises questions about what that presumption means when a person can lose their freedom before a conviction.
For Black defendants, those questions carry additional weight. Black residents already face documented disparities throughout Indiana’s criminal justice system. Expanding the circumstances in which someone can be detained before trial raises concerns about whether those disparities could become more pronounced.
The economic consequences for families can be significant. Pretrial incarceration can mean lost employment and income, disrupted childcare and family responsibilities, difficulty maintaining housing and increased pressure to accept a plea agreement rather than remain incarcerated while awaiting trial. Mike Cunningham, an attorney with Baldwin, Perry and Wiley, P.C., has argued the amendment could push defendants who are denied bail to accept plea deals to get out sooner.
These consequences extend beyond the person charged with a crime. They can affect entire families and communities.
The state has expanded its authority to take away someone’s freedom before conviction. What accountability accompanies that authority?
Judges will have additional discretion. How will they apply the new constitutional standard? What safeguards will ensure that discretion is exercised consistently? Will the amendment be applied equitably across racial and economic lines?
A history of disproportionate incarceration
These questions are not merely theoretical. Existing disparities provide important context for examining how the amendment will be implemented.
According to a June 2022 resolution by the Indiana State Medical Association, Black residents account for approximately 10% of Indiana’s population but represent 24% of Indiana’s jail population and 34% of its prison population.
In Marion County, Black defendants represented about 50% of criminal cases filed between January 2017 and August 2022, despite Black residents accounting for 27% of the county’s adult population during the period studied. The figures come from research by the SAVI project at the Polis Center and the Kheprw Institute, which analyzed Marion County case filings.
The disparities predate the amendment. They do not establish that Question 1 will produce additional racial disparities. However, they demonstrate why the amendment implementation warrants scrutiny.
The infrastructure of incarceration
The implications also extend beyond the courtroom. Indiana’s correctional system is already operating at high capacity, raising questions about where additional detainees would be held and who would bear the financial cost of expanded pretrial detention.
A weekly bed report dated Aug. 18, 2026, which the Indiana Department of Correction presented to a legislative interim study committee, showed that all 11 male adult correctional facilities listed were operating above 90% of their reported capacity. A separate ICE detention unit at Miami Correctional Facility, also listed, was at 71% capacity. New Castle Correctional Facility in Henry County was operating at 94%, while Heritage Trail Correctional Facility in Hendricks County was at 98%.
Both facilities are privately operated by GEO Group, bringing another dimension to the discussion: Indiana’s use of private correctional facilities and the financial arrangements governing their operation.
The Cicero Institute, a public policy organization, has criticized Indiana’s guaranteed minimum occupancy payments to designated private prison operators. GEO Group’s own 2005 filing with the Securities and Exchange Commission said the company would be paid for a guaranteed average daily population of 961 inmates at New Castle, or 90% of the facility’s initial expected occupancy. Those arrangements warrant closer examination, particularly as the state expands the circumstances under which people can be detained before trial.
There is an important distinction, however. People denied bail generally remain in county jails while awaiting trial; they are not automatically transferred to state prisons. State prison occupancy figures therefore do not establish how many additional people county jails can accommodate. They do, however, provide a broader picture of Indiana’s correctional infrastructure and raise questions about whether the state has adequately assessed the costs and capacity implications of its expanding detention authority.
For Black communities, the question is not simply how many people may be detained. It is whether expanded detention authority, applied within a criminal justice system already marked by racial disparities, will deepen the economic and social consequences experienced by families whose loved ones have not been convicted of a crime.
The amendment expands judicial authority. Whether that authority is exercised consistently, transparently and equitably remains an important question for Indiana’s courts, prosecutors and policymakers.
Contact Health and Environmental Reporter LaTasha Boyd Jones at tashaj@indyrecorder.com or follow her on social media @iamtashajones.
Tasha Jones is a poet, writer, researcher, and educator whose work explores language as a tool for liberation and resistance. She hosts In the Beginning: The Spoken Word Podcast, the #1 spoken word podcast on Apple and Spotify. Tasha is also the Poems & Parables Literary Journal editor and is currently writing Pyramids. Plantations. Projects. Penitentiaries. You can follow her on social media: @iamtashajones, @itbspokenwordpod, and @poemsandparables.
