Joint legislative committee examines Tennessee bail reform

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The use of cash bail has gotten significantly higher over the past 30 years, said Jasmine Hess of the Vera Institute of Justice.

As recently as 1990, more than two-thirds of people charged with felonies in the U.S. were released without cash bond, Hess said. In Tennessee in 2019, however, 25 counties reported they did not release any of those in jail on signature bonds instead of cash.

Hess was one of 25 presenters who addressed the Joint Senate Judiciary and House Criminal Justice Committee to Study Bail Reform, which heard more than nine hours of testimony over two days of meetings on the topic this week.

“Money bond is not supposed to be the default response,” Hess said. “That is what has been happening.

“It can make people more likely to rely on the safety net. It can make someone more likely to be re-arrested. If someone has money bond set in their case and they sit in jail even for a short amount of time while their grandmother or their husband or their parents scrape together the money to bail them out, not only does that cost counties, but the collateral consequences are increasing the longer they sit trying to come up with that money,” Hess said.

The committee heard testimony on how bail affects jail populations, data on pretrial releases on bond and prior case law and how closely Tennessee’s judges are following state law.

“What we know is that, if there are changes to be made in this system, it’s not one big thing,” said Rep. Michael Curcio, R-Dickson, co-chair of the joint committee. “What I’ve learned is that it’s probably a million little things. We want to review how our process is supposed to work now under current law and, if we see deviations from that across the state, it’s important to compare that back.”

General Sessions Judge Lynda Jones said there is a “huge difference” in how the court systems work in Davidson County surrounding Nashville compared with rural counties, which sometimes can share a judge or have someone besides a judge, such as a court clerk, assigning bond. She called bond a “nuanced, complicated issue.”

“Please remember that, whatever you decide, people of color have been disproportionately impacted for generations,” Jones said. “Numerous studies have showed that wealthier people are more likely to be exonerated on pre-trial while people in poverty have more convictions and would remain in jail and plead guilty more often simply to get out of jail.

“They can lose their employment after only three days of work. Misdemeanors are considered minor offenses so why are people in jail waiting on a misdemeanor offense?”

Rep. Vincent Dixie, D-Nashville, asked several of the presenters their thoughts on algorithms used to determine bail based on risk factors. Hess and others believe that they can be biased against those with lower incomes.

David Connor of the Tennessee County Services Association said 4,000 people were in Tennessee county jails at the end of July awaiting trial on misdemeanor charges, while there were 10,000 in on felony charges.

“That’s costing counties approximately $16,000 a year for counties to operationally have that bed,” Connor said. “So, we are spending more operationally than we are on kids for our K-12 school system, for the most part.”

Connor said around one-third of Tennessee counties have built or expanded jails in the past 10 years with more in the process of expanding, while an increasing percentage of those being housed are pretrial holds.

“We seem to be going in the opposite direction as a lot of places,” Connor said.

Some solutions presented included a text message reminder system for court dates, such as the one currently used by the Davidson County Sheriff, instead of using cash bail.

Jenna Bottler of the Justice Action Network said the U.S. Supreme Court has ruled “excessive bail” is considered bail that is higher than “reasonably calculated to fulfill the purpose of assuring the presence of the defendant.”

Bottler said the data showed increased recidivism, or odds of a return to jail, when defendants who don’t need to be held are held on cash bail.

While the committee is looking at potential statute changes, Rep. William Lamberth, R-Portland, said it was clear the state's statutes have been deemed constitutional, and a larger issue might be how courts are following the laws.

“Over and over and over again, for decades, our statutes have been upheld,” Lamberth said. “If there is a way to get that message out there, I am all for it. The application of it has lagged behind.”

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