SJR 9: Right to Bail

Senator Young has introduced Senate Joint Resolution 9 which would amend the Indiana Constitution concerning the right to bail. Currently Article 1, Section 17, says that “with sufficient sureties,” a person accused of crimes other than murder or treason is entitled to bail. (Which is to say, entitled to be released from jail pending trial or conviction.) This amendment would add a list of offenses for which bail is not required (although the court may, at its discretion, grant bail for these offenses):

• A person charged with a serious crime (defined as a crime for which the punishment can be a term of imprisonment of at least three years) if the person was awaiting trial on another crime.
• A person charged with a new felony if the person allegedly committed the new felony while awaiting trial on a serious crime.
• A person charged with a serious crime if no conditions of bail are sufficient to protect the public from harm; protect any person from harm; ensure the appearance in court of a person charged  with a crime; or ensure that a person charged with a crime does not 32 commit another crime.

The amendment would also place into the Indiana Constitution the following purposes for bail:

• Protect the public from harm;
• Protect any person from harm, including a person charged with a crime;
• Reasonably ensure the appearance in court of a person 6 charged with a crime; and
• Reasonably ensure that a person charged with a crime does not commit another crime.

The discussions I’ve been seeing lately mainly seem to favor a more permissive approach to bail, primarily based on the recognition that a person who has only been accused of a crime shouldn’t be prematurely punished for that crime; and that bail necessarily falls hardest on poor people. (As the man said, “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread.” The man, in that case, being Anatole France.) On its face, this amendment seems to be more restrictive of bail. And maybe that’s a reaction to the move toward greater permissiveness. But I’ll confess that my practice is civil rather than criminal, so there could be nuance of which I’m unaware.