Commission weighs statutory language to implement preventive-detention amendment, members press for due-process safeguards

At a meeting of the Bail and Release Review Commission, prosecutors presented draft 'trailing' statutes to implement a likely amendment to Article I, Section 17 of the Indiana Constitution that would expand preventive detention beyond murder and treason.

Prosecutor Jared Holtzclaw, representing the Indiana Prosecuting Attorneys Council, read the amendment language and outlined a package of statutory changes he said the General Assembly should adopt if voters approve the constitutional amendment. Quoting the resolution, he said: “Offenses other than murder or treason shall be bailable by sufficient sureties unless the accused poses a substantial risk to any other person or the community.” He recommended amendments to existing code (including changes to IC 35-33-2), creation of a new IC 35-33-3.7 to govern procedures for denial of bail, and edits to provisions governing the state’s pretrial risk-assessment tool.

Holtzclaw told the panel the proposals would require prompt adversarial hearings, limit continuances (he suggested no more than five days for defense continuances and three for the state), preserve core defendant rights (including counsel and the right to testify) and set an expedited appeal pathway for detention determinations. He also proposed that strict rules of evidence not apply in those hearings, and that findings made at a detention hearing normally be inadmissible at trial except for impeachment or perjury proceedings.

Zach Stock of the Indiana Public Defender Council said defenders oppose preventive detention absent robust, uniform procedures. “Due process is a constitutional check on arbitrary power,” Stock told the commission, arguing that a prompt adversarial hearing, appointed counsel, meaningful cross-examination, clear-and-convincing proof and a timely interlocutory appeal are essential if the state authorizes preventive detention. He warned that without strong procedural protections and expanded pretrial alternatives, local jails could swell: he cited federal experience after the 1984 Bail Reform Act and urged investment in evidence-based pretrial services.

Judges and local officials pressed practical questions about how the proposed statutes would work in 92 different counties. Judge Mark Spitzer (Grant Circuit Court) and others said implementing language should provide lists of factors for courts to consider—nature of the offense, weight of evidence, defendant’s history and ties to the community, current supervision status, mental-health indicators and danger to the public—while preserving judicial discretion at the initial hearing.

Members also debated a possible statewide bail schedule and mandatory minimum bail for repeat or violent offenders. Prosecutors raised concern that a rigid statewide schedule could force some counties to lower existing bond amounts; others emphasized that many counties already operate local bond schedules and that a one-size-fits-all approach risks removing judicial and local discretion.

The commission did not adopt final statutory text; members asked staff and stakeholders to circulate written recommendations before the next meeting (submissions due to staff counsel Philip Lashka by Oct. 17) and signaled a preference for drafting language that pairs preventive-detention authority with explicit due-process safeguards and an expedited appeals mechanism.

What happens next: Commissioners asked the General Assembly to consider implementation language during the 2026 legislative session if the amendment is again approved and placed on the 2026 ballot. Several speakers urged aligning statutory effective dates with the constitutional effective date to give courts and defense counsel time to prepare.