NASHVILLE — Tennessee lawmakers are eyeing modest tweaks to the state's privatized bail bond system, where lawsuits and data show poorer people charged even with nonviolent crimes often can't afford to get out of jail before their cases are heard — despite a justice system that allows for pre-trial release of detainees presumed innocent after being assessed for risk.
Problems in current practices in jurisdictions across the state, especially in rural areas, assumed center stage last week during two days of hearings before the General Assembly's special Joint Committee to Study Bail Reform.
Those testifying included criminal justice reform advocates, judges, prosecutors and sheriffs, representatives of the bail bond industry, a victims' rights advocate and others.
Criminal justice reform advocates pointed to Tennessee's rising jail population after an initial decrease due to COVID-19. Change is needed, they said, especially in the realm of setting "cash bail" for defendants charged with nonviolent crimes before they are tried.
Figures compiled by the Vera Institute for Justice show 25 Tennessee counties had zero cases where defendants were released on their own recognizance in 2019. Among those listed was Bradley County in Southeast Tennessee.
Some also called for new regulations on the for-profit bail bond industry, which can underwrite 10% of the bail for an accused defendant's pretrial bail if the person is deemed a good risk. They also want improved training for judges and magistrates.
Critics raised objections. Among issues concerning bail bondsmen is potential state licensure requirements. And there is discussion of allowing clerks to let defendants bypass bond companies and collect bail of $7,500 or less from defendants.
Among those opposed to major changes was Verna Wyatt with Tennessee Voices for Victims, whose advocacy originated with the sexual assault and murder of her sister-in-law decades ago. Wyatt noted the assailant was out on bail.
"I'm terrified Tennessee will start no-bail [or] low-bail programs," Wyatt said, charging such policies with "terrorizing" cities such as Chicago and New York. Some areas have backed off such policies.
Undergirding at least some of the Tennessee debate was a ruling last November by U.S. District Judge Clifton L. Corker in the Eastern District of Tennessee. Corker granted a preliminary injunction holding that Hamblen County's bail procedures violate constitutional rights to due process and representation of counsel.
The judge ordered the sheriff to stop jailing people who are arrested and who are assigned money bail without first considering at an individualized hearing a defendant's ability to pay and with the defendant having access to an attorney to represent them.
Rep. Bud Hulsey, a Kingsport Republican and a former police department lieutenant, told committee members about a case in which a defendant released by Knox County on charges of promoting prostitution drove to Sullivan County where he allegedly killed a woman he previously dated before slashing an ankle monitoring bracelet and then fleeing to New Orleans. He was later arrested, Hulsey said.
The man has since been charged with first-degree murder, vandalism of a monitoring device and vandalism, and he was brought back to the state from New Orleans.
"To me, the talk about a matrix [to assess risks of releasing a defendant] does not work," Hulsey told colleagues, saying the man was released by Knox County based on a pretrial release matrix.
During the hearings, Davidson County General Sessions Court Judge Lynda Jones testified in favor of the legislation. But Jones also said "good laws" are already in place and the judge added that defendants' constitutional rights need to be balanced with public safety.
"Instead of talking about reform, a better word is refine. We want to refine the laws we have," she said, with both judges and clerks applying laws fairly.
Judges legally have the say over bond amounts, but in some counties that is delegated to staff, with some counties still maintaining fee schedules. A key consideration for setting bail is the determination of whether the defendant is at risk of fleeing. Factors can include the nature of the offense, whether the person has a job, roots in the community, nearby family, past criminal history and the status of their mental health.
Calling monetary bail a "final resort," Jones said "liberty has to be tantamount."
Pretrial release can only be outright denied for unconvicted people facing capital charges.
During the hearings, Jasmine Heiss with the Vera Institute of Justice told lawmakers that in 2019, Tennesseans in 84 counties paid an estimated $46.4 million to the bail bond industry to secure their release from jail.
In 2020, as COVID-19 set in, the bail industry made $43.98 million. The data did not include major metropolitan counties, including Hamilton County. Heiss also said taxpayers in the same 84 counties shelled out $143.29 million on pretrial detention, representing 50% of total jail spending.
Others testifying about problems in the current system included attorney Willie Santana of Morristown, a visiting law professor from Lincoln Memorial University who last year said bail in rural counties like Hamblen "destroys the presumption of innocence" for low-income detainees and the effect is "wide-ranging and more damaging."
As lawmakers voiced concerns over reports of bail bond agents wearing police-style uniforms — and one apocryphal allegation that one bondsman sought to exchange sexual favors for a woman's bond — bail bond agent Shelly Alexander sought to provide committee members another side.
Alexander wept as she described how she wouldn't bail her own daughter out of jail once following a drug arrest, telling lawmakers she knew her daughter would go back to abusing meth.
She said her daughter's 11-year-old son later told her "you saved my momma's life."
Senate Judiciary Committee Chair Mike Bell, R-Riceville, who co-chaired last week's hearing with House Criminal Justice Committee Chair Michael Curcio, R-Dickson, said he was surprised to learn that in Meigs County, one of the counties he represents, the court only meets three Thursdays a month to hear bond cases for defendants.
Bell said he also learned the county uses a court schedule outlining what bonds are for specific offenses — a system that has been questioned.
Still, Bell said, advocates' push for standardization among all the state's 95 counties would be problematic. There is a "world of difference between a judicial system in a large city like Nashville or Memphis versus Polk County," said Bell, whose district includes Polk County.
But, the lawmaker said, "it seems to me like we're not using own recognizance as a default, we're using money bail."
Jim Hart, a consultant for the Tennessee County Technical Assistance Service and former chief of corrections for the Hamilton County Sheriff's Office, said from 2011 to 2021, counties built 27 new jails or embarked on significant expansions of their facilities.
Hart said moving to pretrial risk assessments to determine releases of people charged would be "a great tool in providing some information to help make those decisions."
Tennessee County Services Association Executive Director David Connor said "we are spending more on these people than we are on children."
The hearings arose from legislation sponsored earlier this year by Sen. Ferrell Haile, R-Gallatin, and carried in the House by Curcio.
Haile said he became interested after a constituent called him raising concerns about the bail bond industry. Haile, the Senate's speaker pro tem, said some of the information was wrong. But Haile said he saw other things that raised concerns upon looking further into bail bond practices and related issues.
Among those was the impact on Tennessee's poor.
"It is not an absolute that you release someone even if they are poor, but you need to go through that process," said Haile, a conservative who last year visited six Tennessee counties to explore bail issues. "And I don't think we've been doing a very good job of that in some places."
Curcio said "what we know is that, if there are changes to be made in this system, it's not one big thing. 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."
Contact Andy Sher at email@example.com or 615-255-0550. Follow him on Twitter @AndySher1.