No surety on your bond is a violation of your constitutional rights
CASH-ONLY BAIL IS UNCONSTITUNAL: ARE SOME INDIANA judges IGNORING ARTICLE 1, SECTION 17? OF Indiana Constitution
At the center of the discussion is Article 1, Section 17 of the Indiana Constitution, which provides:
"Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong."
Supporters of expanded use of surety bonds argue that this language is clear: for offenses other than murder or treason, the Constitution expressly recognizes bail "by sufficient sureties."
At the same time, Indiana Code § 35-33-8-3.2 authorizes courts, after considering the Indiana pretrial risk assessment system (if available), other relevant factors, and bail guidelines, to admit a defendant to bail under one or more of several options, including:
- (A) Execute a bail bond with sufficient solvent sureties;
- (B) Deposit cash or securities in an amount equal to the bail;
- (C) Execute a bond secured by qualifying real estate;
- (D) Post a real estate bond; or
- (E) Any combination of those options.
Those advocating for broader use of surety bonds argue that while the statute gives judges discretion among available forms of bail, that discretion must be exercised consistently with the Indiana Constitution, which is the highest law of the state. AND THIS HAS BEEN PROVEN TO BE TRUE ACCORDING TO Sneed v. State. The Court of Appeals it held that under the facts of that case, the trial court abused its discretion by requiring cash-only bail and denying the defendant's request for the option of a surety bond. The court sent the case back with instructions that the defendant be given the option of a surety bond
A Constitutional For advocates of surety bonds, this case demonstrates that Indiana appellate courts have recognized circumstances were denying a requested surety bond and requiring cash-only bail can constitute an abuse of judicial OFFICE
Supporters of this interpretation contend that judges take an oath to uphold the Indiana Constitution and that constitutional provisions cannot simply be ignored because a statute provides multiple bail options.
They argue that Article 1, Section 17 already establishes that, except in murder or treason cases meeting the constitutional standard, offenses are "bailable by sufficient sureties." From this perspective, a judge's discretion under Indiana Code § 35-33-8-3.2 allows the judge to select among lawful conditions of release, but does not authorize eliminating constitutionally recognized surety bail altogether.
According to this view, if a court wishes to require cash, the order should provide for cash along with any constitutionally available surety option, rather than imposing a "cash only" condition.
The Concern Over Cash-Only Bonds
Critics of current practices point to instances where courts have ordered:
- Cash-only bonds
- 10% cash bonds without a surety option
They argue that these practices effectively prevent defendants from using licensed bail agents, despite the Constitution's reference to "sufficient sureties."
Supporters of surety bonds also argue that licensed bail agents provide practical benefits beyond simply posting bond.
They contend that when a defendant is arrested and has no access to a phone, a bail bondsman often contacts family members, explains the process, and helps coordinate release. They also point out that bail agents have a financial incentive to ensure defendants appear in court and, if a defendant fails to appear, may assist in locating and surrendering that individual.
By contrast, critics of expanded pretrial release programs argue that they rely on taxpayer-funded supervision, whereas commercial surety bonds operate through private financial responsibility.
Judicial Accountability
Those raising concerns about cash-only practices argue that judges are sworn to uphold the Constitution above all other authorities.
They contend that constitutional provisions define the authority and duties of judicial office and should remain the governing standard whenever a court exercises discretion.
Some advocates further argue that if a public official knowingly acts outside the limits of constitutional authority, questions may arise regarding compliance with official duties under Indiana law. They point to Indiana Code § 35-44.1-1-1, which defines the offense of official misconduct under specified circumstances. Whether that statute applies in any particular situation, however, depends on the specific facts and legal findings made by the appropriate authorities.
A Continuing Legal Question
Supporters of broader access to surety bonds believe Indiana courts should ensure that bail practices remain faithful to the language of Article 1, Section 17.
Others may disagree with that constitutional interpretation and contend that Indiana law permits judges to impose cash-only or other forms of bail in appropriate circumstances.
Ultimately, only Indiana appellate courts or the Indiana Supreme Court can provide a definitive interpretation of how Article 1, Section 17 and Indiana Code § 35-33-8-3.2 interact. ACCORDING TO THE Sneed v. State COURT APPELLATE. THAT DESTION WAS ALREADY MADE The Court of Appeals held that under the facts of that case, the trial court abused its discretion by requiring cash-only bail and denying the defendant's request for the option of a surety bond. The court sent the case back with instructions that the defendant be given the option of a surety bond. Bottom Line
The debate is not simply about bail—it is about the relationship between the Indiana Constitution AND WHY THE JUDGES NOT UPHOLDING THE CONSTITUTION UNDER Article 1, Section 17
Supporters of surety bonds argue that the Constitution already recognizes bail "by sufficient sureties" and that this protection should remain meaningful in everyday bail decisions.
Whether Indiana's current bail practices fully comply with that constitutional language remains an issue that continues to generate legal debate and, where appropriate, has been resolved through the courts already according to Sneed v Indiana. Conclusion surety should never be takin of a Indiana bonds because it's written in the constitution Article 1, Section 17
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