Memphis nonprofit Just City sues over TN law limiting considerations on bail affordability

Local bail reform nonprofit Just City , alongside the American Civil Liberties Union of Tennessee, is suing officials in Shelby County's criminal justice system over a state law that prevents judges from considering someone's financial condition when setting bail.

The law was sponsored by Shelby County Republicans Sen. Brent Taylor and Rep. John Gillespie and became law in May this year.

The lawsuit, filed in the U.S. District Court for the Western District of Tennessee Wednesday, requests a federal judge rule the law unconstitutional and prevent the Shelby County Sheriff's Office from enforcing bail orders that are issued without considering the defendant's ability to pay. Also listed in the lawsuit, beyond the sheriff's office, are Shelby County's judicial commissioners and General Sessions Court Judge Bill Anderson, who is the presiding judge.

"We're seeing the harm without even talking about the specifics of the law's implementation in Shelby County," Just City Executive Director Josh Spickler told The Commercial Appeal. "The law is just completely out of keeping with very settled case law around the issue of bail in America. We don't think there's any other state that has a law like this. It's a wild outlier. We mention in the complaint that this is very, very unusual — never seen before."

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Spickler and the ACLU were among a coalition of activists who pushed the county to reform the bail system. The group threatened a lawsuit after an independent monitor in 2021 found that the county had not been factoring in someone's financial conditions when setting bail.

Those talks led to a standing bail order being established that required judges and judicial commissioners to use an "ability-to-pay calculator" to determine what an affordable bail would be. The order, which went into effect in 2023, also required judges to set an affordable bail if they intended to release a defendant from jail while they await trial and set unaffordable bail if they want to keep a defendant in jail pretrial.

"The agreement recognized that unaffordable bail was a de facto detention order," the lawsuit said. "For that reason, it required judges to consider ability to pay before setting bail and provide their reasoning for imposing an unaffordable detention order — lest an arrestee be subject to unnecessary wealth-based detention in violation of the constitution."

Spickler said the new state law prevents judges from doing this, and it could allow people with deep pockets — who might be public safety and flight risks — from being kept in jail.

"You could be a wealthy person charged with a violent offense, and if you are concerned with keeping that person in custody with a bail, you need to know how much they can pay," he said.

After the bill became law in May this year, the lawsuit said Just City urged the county to continue using the ability-to-pay calculator, which ultimately did not happen. Spickler said the law has made it more difficult for Just City’s bail fund to help as many defendants post bail as it had in the past. According to the lawsuit, Just City has paid $3 million in cash bail for more than 1,700 defendants since it launched the fund.

In requesting an injunction be placed against the law, Just City alleged that not considering someone’s ability to pay bail results in "widespread pretrial detention of people" simply because they cannot afford the bail set. Some of these people, the lawsuit said, "do not need to be detained to reasonably ensure the safety of the community and the appearance of the arrestee as required."

According to the lawsuit, the law violates the Fourteenth Amendment’s protections for due process and equal protection . Just City said the law established a "discriminatory wealth-based detention" with its passage.

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Stella Yarbrough, the legal director for the ACLU of Tennessee, said ignoring someone's ability to pay can cause two people with the same charges to have different burdens on their case.

Should both people, in the scenario Yarbrough described, have a $5,000 bail set and one can pay while the other cannot, it could change the outcome of a case.

"One person gets the benefit of being released, being able to work on their case, retain an attorney, find their witnesses and prove their innocence," Yarbrough told The CA. "In fact, [that person] has a greater presumption of innocence because they're coming into court in their own clothes, on their own volition, rather than in an orange jumpsuit and handcuffed."

Similarly, Yarbrough said courts have ruled that detaining someone as their case is being litigated simply because they cannot afford the bail amount is unfair, and is an unconstitutional violation of due process protections.

This article originally appeared on Memphis Commercial Appeal: Memphis nonprofit Just City sues over TN law limiting considerations on bail affordability