State lawmakers are considering making changes to Tennessee’s cash bail system.
A special joint committee met for nearly 10 hours this week to hear testimony from criminal justice experts and bail industry leaders to inform debate on the issue when the legislature returns in January.
Tennessee’s Constitution guarantees that all prisoners shall be entitled to bail, except for capital offenses. Proponents of reform say that bail puts an unconstitutional financial burden on unconvicted defendants and is not necessary to ensure court appearances or prevent dangerous criminals from being on the streets.
Sen. Ferrell Haile, R-Gallatin, proposed bills earlier this year that would establish regulation and oversight for bail bond companies and allow certain defendants to pay a bail bond of 10% of their bail amount with the court clerk, as is currently allowed only with bond companies.
“It has never been my intent to abolish the bail industry, but it is my intent to shine a light, have more accountability, better education and better professionalism for the industry,” Haile said. “That’s where we need to focus.”
Between 2007 and 2019, Tennessee’s jail spending increased nearly 29% from $414.2 million annually to $532.7 million. The jail population also rose by about 25% in that period.
Since spring 2020, pretrial detention in local jails increased by 39%, while total jail populations increased only 15%.
“This growth is overwhelmingly driven by a money bail system,” said Jasmine Heiss, project director of a mass incarceration research initiative at the Vera Institute.
Data shows that cash bail is increasingly prevalent throughout Tennessee — and is sometimes the only option available to defendants.
In 2019, 25 Tennessee counties reported zero releases of defendants without money bail being paid, according to data from the Administrative Office of the Courts analyzed by Vera. Four counties reported cash bail as the only form of bond set that year.
In 2020, the bail industry made nearly $44 million.
Data also shows that there’s a correlation between pretrial detention — time defendants serve in jail before their trial — and their likelihood to recommit a crime.
Jenna Bottler, deputy director of the Justice Action Network, told committee members that even two or three days in jail can make a defendant 39% more likely to recommit a crime.
“The longer someone is held in pretrial detention, their likelihood of recidivism before their original trial goes up,” Bottler said.
In recent years, several other states have changed or eliminated their cash bail system. In 2018, California completely eliminated cash bail. New York eliminated pretrial detention and cash bail in 2020 for most low-level and nonviolent crimes. Kentucky, New Mexico and New Jersey have also recently passed reforms.
Opponents of reform say doing away with cash bail will keep dangerous criminals out on the streets as they await trial.
Verna Wyatt, representing Tennessee Voices for Victims, read committee members a list of offenders who recommitted dangerous crimes while out on bail.
Earlier this year, the legislature considered a proposal to give all Tennessee counties the option of implementing a pretrial risk assessment system already used in Davidson County.
In Nashville, the Davidson County Sheriff’s Office has developed a risk assessment matrix to help judges consider the risks a defendant may pose while awaiting trial — including past criminal charges — and likelihood that the defendant will show up in court.
Since it was implemented four years ago, the number of Davidson County defendants released while awaiting trial has doubled, saving more than $100,000 in jail costs for the county.
A similar system in Knox County reduced the inmate population from 1,600 to 700, and reduced pretrial detention from 12 days to an average of two days, saving the county thousands of dollars a day.
“We’ve got some issues that need to be dealt with,” Haile said. “We need to come together and figure out how we can do that — not hurting the bonds companies, not destroying the bond companies, but making them more efficient.”