"If after the defendant is released upon personal recognizance, an unsecured personal appearance bond, or any other bond approved by the court, the defendant violates a condition of release, is charged with an offense committed during the defendant's release, or engages in conduct which results in the obstruction of the orderly and expeditious progress of the trial or other proceedings, then the court may revoke and terminate the defendant's bond and order him held without bond pending trial or without release during trial."
Source: Tennessee Code
A new law soon will allow judges to incarcerate a suspect if the person picks up new charges while out on bail and awaiting trial.
The law, which takes effect Jan. 1, says that, in these cases, a judge can put the accused in jail without bond.
Currently, state law does not allow judges to put someone in jail without bond unless they are charged with a capital offense or violate probation from a sentence they are serving from a previous conviction.
While the new law would allow judges to hold suspects without bond at the judge's discretion, some defense attorneys argue the law may be unconstitutional.
"Just the fact they are not setting the bond and it's not a capital case," said Ardena Garth, Hamilton County lead public defender.
"The sadder part about some of this is, if somebody is going to be in custody and not be able to make bond, they may lose their job," Garth said. "Challenging the constitutionality [of the new law] is not going to be something inexpensive."
In many cases, prosecutors may offer defendants a plea deal that would allow them to get out of jail and return home. But such deals may make it harder for someone to challenge the new law.
"Who's going to appeal at that point?" she said.
The new law comes at a time when a local competitive bail bonds market has allowed for defendants to post bond at as little as 3 percent rather than the traditional 10 percent.
Judges and magistrates set bonds to ensure a defendant will appear in court and also take into consideration public safety, depending on the crime and the person's record. With lower premiums being paid, sometimes suspects post bond only to be arrested again, sometimes on the same charge.
Hamilton County District Attorney General Bill Cox said the new law will be a tool "we can utilize to accomplish our mission."
"Our job is to do everything we can to protect the public," he said.
While most people who are arrested do not pick up new charges while they await trial, some do, Cox said, and they're the "biggest problem in the criminal justice system -- those who dedicate their self to criminal activity."
"You still have to remember you're not guilty until proven, but what this statute is saying, in essence, when you agree to certain conditions on your bond release, you have to comply with them or you can be held until trial, which makes sense," he said.
State Sen. Tim Barnes, D-Adams, who is also a practicing attorney, sponsored the bill. He said the new rule came about as a "technical correction" in the law after a defense attorney won an appeal after a judge revoked the bond in one case.
The law currently allows judges to revoke a defendant's bond when the trial is going on. The language doesn't include pending trials, however.
"I think judges have always been able to make that balancing decision once that someone is out on bond," said Hank Hill, a local defense attorney. "I think most of our judges evaluate the facts on a case-by-case basis."
He did, however, note portions of the new law could lead to constitutional challenges due to vagueness. In one portion, the law states that the accused can be put in jail without bond if he or she "engages in conduct which results in the obstruction of the orderly and expeditious progress of the trial or other proceedings."
"What does that mean?" Hill asked. "If the guy doesn't show up two or three times, that's an obvious problem. If the guy shows up and says, 'I appreciate the fact that I have an appointed lawyer, but the guy isn't doing anything. Can I get a new lawyer?' Are you going to put him in jail for that because that obstructs the orderly flow of the process?"