This paper recently reported that the Whitfield County magistrate judge is no longer requiring cash bail of most people charged with misdemeanors. We believe this is a smart thing to do and benefits everyone in the community. Not only is it more fair for defendants, it also saves taxpayers a large amount of money.
In our current system two people who have the SAME charge can have totally different outcomes, depending on their finances. One can pay for their release and later return to court, while the one without financial means stays in jail. We know that staying in jail makes it less likely that they will have charges dropped or will be found not guilty. Is it justice to penalize people simply because they are poor?
Critics of bail reform often say: "They did the crime. Let them stay in jail." This belief assumes that only guilty people are put in jail. We know this isn't true. Legally, all individuals are innocent unless proven guilty.
Critics say: "What about public safety?" The law says bond is supposed to be denied when a person poses a risk to public safety. We hear an uproar when someone is released without bail and goes on to commit a violent crime. However, these cases are exceedingly rare - that is why they tend to make the news. The vast majority of people who are released without bail do comply with their conditions of release. We know that people released on cash bail also sometimes commit violent crimes, so we see that cash bail alone does not ensure public safety. It simply punishes those who lack the money to pay bail.
There is considerable evidence showing that even a few days in jail can cause a person's life to unravel. An individual may have to drop out of school or lose their job, housing, car or even the custody of children. This disruption can lead people to take a guilty plea just to get back to their lives. As a result of the guilty plea, they now have a criminal record that causes all kinds of future consequences. Money paid for bail is never refunded, even if a case is dismissed or a person is judged innocent.
Critics say: "People need to have skin in the game. They won't come to court if they don't pay money bail." In fact, jurisdictions across the nation have already proven court appearance rates are significantly higher when people simply receive reminder texts about their court date. Non-profit bail funds like the Hamilton County Community Bail Fund have also demonstrated that court date reminders and community support, like transportation, improve the likelihood that people will return to court to resolve their case.
Critics say: "That won't work here." It has already worked. In early 2020, the Hamilton County court system released about 200 individuals charged with non-violent offenses during the pandemic. During that time, there was no increase in crime.
Tennessee law mandates that judges use cash bail only as a last resort and it should be imposed "only if other less restrictive conditions are deemed insufficient to ensure someone appears for their trial." Furthermore, the U.S. Constitution prohibits excessive bail.
As in Whitfield County, Hamilton County has plenty of opportunities for action at a local level. Bail hearings being implemented in other parts of the state provide a method for increased release without restrictions, as well as protecting defendants' constitutional right to affordable bail. The Sheriff's Department can implement measures to reduce time in custody immediately after arrest. Pretrial data can be coordinated between court clerks and magistrates to examine the effectiveness of pretrial decisions. The County Commission can invest in a system for court notifications (currently nonexistent).
Let's start a comprehensive program of bail reform today.
Connie Robinson and Sandra Williford are members of CALEB's Criminal Justice Task Force.