FORT WAYNE, Ind. (WOWO) — Indiana voters will decide Nov. 3 whether to amend the state Constitution and give courts broader authority to deny bail to people accused of crimes other than murder or treason.

Public Question 1 would change Article 1, Section 17 of the Indiana Constitution. If approved, a person charged with an offense other than murder or treason could be held without bail if prosecutors meet two requirements.

First, the proof must be evident or the presumption strong. Second, the state would have to prove by clear and convincing evidence that no conditions of release would reasonably protect another person or the community.

A “yes” vote would approve the proposed constitutional amendment. A “no” vote would leave the current constitutional language in place.

The debate over the question centers on public safety, the presumption of innocence and how much authority judges should have to keep defendants in jail while their criminal cases are pending.

Supporters of the amendment say it would give judges another tool in cases involving defendants who are considered dangerous.

Indiana State Sen. Tyler Johnson, who represents District 14, said the proposal is intended to protect people from defendants who could pose a serious threat if released while awaiting trial.

“The real reality is that we’re just trying to help protect Hoosiers from people who would be considered dangerous if they were let out of jail while awaiting trial,” Johnson said.

Under Indiana’s current Constitution, people charged with crimes generally have a right to bail, with murder and treason treated differently when the proof is evident or the presumption strong.

Supporters point to serious violent offenses as an example of why they believe the Constitution should be changed.

Johnson said existing protections, including protective orders, do not necessarily address situations in which authorities believe there is an immediate threat of harm.

“The judges do need one more tool to help protect us from criminals,” Johnson said.

The ACLU of Indiana opposes the amendment, arguing that judges already have substantial authority to impose restrictions on people released before trial.

Danielle Drake, advocacy manager for the ACLU of Indiana, said the proposed language is too broad and does not clearly establish which offenses could ultimately result in someone being denied bail.

“The language is already extremely broad,” Drake said. “We’re looking at a constitutional amendment that doesn’t actually define what is deniable if it’s passed.”

The ACLU has also pointed to data from the Indiana Office of Court Services involving people classified as high risk and released before trial.

According to figures cited by the organization, 98.6% of assessed high-risk people released pretrial did not commit a new violent crime while they were out of custody.

Drake said judges already have several options available to address concerns about a defendant’s conduct or whether that person will return to court.

“Judges have the ability to impose the money bail supervision, no contact orders, electronic monitoring,” Drake said.

Allen County Prosecutor’s Office Chief Counsel Tesa Helge disagrees with the characterization that Public Question 1 would simply allow defendants to be held without bail.

Helge said the existing system is designed to balance public safety with the need to allow defendants to remain in the community when appropriate.

“Of course, the statistics are in favor of release,” Helge said. “And that is the case. If people have jobs, we want them to continue working. The system [is] designed to ensure that people come to their court proceedings. That’s the goal.”

Helge said prosecutors can seek to revoke a person’s bond when someone released from custody is accused of committing another offense.

She said that can happen even in cases involving extremely serious allegations.

“I can think of a handful of situations in the past year where someone has received shots and we know that they’re going to pass away from them, but they’re hanging on, basically, in a life-threatening state in the hospital, generally under ventilation for a period of time while their family is trying to figure out how long to leave that,” Helge said.

Under the current system, Helge said, a defendant accused in such a case can still be entitled to bond.

She believes Public Question 1 would primarily affect the most serious cases rather than routine or lower-level offenses.

“I don’t believe this public question is meant to address low-level felonies, situations like that,” Helge said. “I think it’s much more designed to allow us to have some higher bonds and no bond holds for crimes like attempted murder.”

The proposed constitutional language, however, does not specifically limit the change to attempted murder or other violent crimes. Instead, it would apply to offenses other than murder or treason if the required evidentiary standards and public-safety findings are met.

That distinction is one of the central issues in the debate.

Opponents argue the amendment could broaden pretrial detention beyond the system’s existing tools and create additional circumstances in which people who have not been convicted could remain incarcerated.

Supporters say the measure establishes a high legal standard before someone could be held without bail and would not create an automatic no-bail rule.

Helge said the proposed amendment includes a process requiring prosecutors to meet specific burdens of proof.

“This public question does not say that we just hold people no bond,” Helge said. “Even when they’re held no bond, they have a right to a long process and a lot for the state to prove to be able to hold them no bond.”

According to Helge, prosecutors would first have to prove by a preponderance of the evidence that the person charged committed the offense.

A preponderance of the evidence means the claim is more likely than not to be true.

The state would then have to prove by clear and convincing evidence that no conditions of release would reasonably protect another person or the community.

That standard is higher than a preponderance of the evidence but lower than the beyond-a-reasonable-doubt standard required for a criminal conviction.

If the state cannot meet those requirements, Helge said prosecutors could instead seek conditions for release designed to address specific concerns. Those conditions can include electronic monitoring.

The debate also involves the Indiana Supreme Court’s 2013 decision in Fry v. State.

In that case, the court addressed the burden placed on the state when prosecutors seek to deny bail to a person charged with murder or treason.

The court held that when a defendant charged with murder or treason seeks bail, the state must show by a preponderance of the evidence that the proof is evident or the presumption strong if it wants to deny bail.

Helge said the process contemplated by Public Question 1 builds on that type of judicial framework while establishing an additional constitutional basis for denying bail in qualifying cases.

The ACLU argues that Indiana judges already have sufficient tools to address public safety concerns, including financial bail, supervision, no-contact orders and electronic monitoring.

Johnson argues those options do not always provide enough protection when authorities believe someone could pose an immediate danger.

“Judges do need one more tool to help protect us from criminals,” Johnson said.

The proposed amendment would not eliminate bail in Indiana. Instead, it would create an additional circumstance under which a person accused of a crime other than murder or treason could be denied release.

For voters, the decision comes down to whether they believe the existing constitutional protections provide sufficient safeguards or whether judges and prosecutors need additional authority in serious criminal cases.

Public Question 1 will appear on Indiana’s Nov. 3 general election ballot. Voters will be asked to mark either “yes” or “no” on the proposed constitutional amendment.