Bail remains contentious issue as Tennessee Republican lawmakers crack down

A Memphis-based criminal justice advocacy group is challenging a new law regulating bail. (Photo: John Partipilo)

Battles over Tennessee’s bail laws are brewing amid arguments about two legislative moves designed to keep more defendants in jail until their court date.

In one case, a Memphis criminal justice advocacy group is challenging the constitutionality of a new law prohibiting judges from considering an arrested person’s ability to pay when setting bail. Just City, aided by the American Civil Liberties Union, filed suit last week claiming the law violates the Constitution because the opportunity to make bail is a “matter of fundamental fairness.”

“The law mandates arbitrariness by requiring judges to ignore the consequences of their bail orders and disregard whether arestees will be released or detained,” the lawsuit, which was filed in U.S. District Court in Memphis, says.

Meanwhile, the bail industry is seeking a September hearing before the Legislature’s corrections subcommittee to oppose a constitutional amendment bill that would remove the right to bail for offenses such as second-degree murder, aggravated rape, child rape, torture and a host of felonies that now require offenders to serve at least 85% of their sentence under yet another new law.

Critics claim the proposed amendment change would allow judges to decline setting bail for defendants on more than 70 offenses, instead of just those involving capital murder.

The bail industry, which opposes the bill, hopes to identify the cost of holding inmates in jail for extended periods until their criminal cases are complete. Corrections subcommittee chairman Ed Jackson could not confirm the constitutional amendment would be part of the agenda.

Republican Sen. Todd Gardenhire of Chattanooga argued against the measure this year, saying it will force counties and the state to spend millions of dollars to build more jails and prisons to house offenders awaiting court dates.

House Speaker Cameron Sexton, who is sponsoring the measure, said repeatedly this year the amendment is needed to avert the release of defendants who commit other crimes before they go to court.

Led by Republicans, the measure passed the Senate 22-6 and the House 82-15. It must go through the 114th General Assembly as well to be placed on the 2026 ballot and receive a majority vote of Tennesseans participating in the next gubernatorial election.

The Senate also voted 27-4 in favor of Sen. Brent Taylor’s bill prohibiting judges from determining bail based on a person’s ability to pay. The measure sponsored by Republican Rep. John Gillespie of Memphis passed the House on a 74-20 vote.

The Just City lawsuit contends the law targets Shelby County reforms to the bail system that for years allowed judges to set bail without considering a defendant’s ability to pay.

“This practice had resulted in widespread unnecessary detention of people who could not afford their bail amounts, but who would otherwise return to court and live peacefully in their communities if released,” the lawsuit says.

A binding agreement between Just City and Shelby County officials, including the Shelby County sheriff and presiding General Sessions Criminal Court judge, requires judicial commissioners to use financial information from a calculator to determine defendants’ ability to pay when setting bail.

The pressures that were pushing people out of jail are there anyway. And I don’t think there was a great deal of investigation as to the financial capacity of the defendant at the time bail is set.

– Joel Moseley, expter on bail law

Taylor, a Memphis Republican, responded to the lawsuit by calling the filing “as predictable as finding a mullet at a tractor-pull!” and argued that “anti-cash bail” groups such as Just City and Decarcerate Memphis want to release more criminals.

“This law removes the ability of judges to let criminals out of jail pending trial based on how much money they happen to have in their pockets,” Taylor said in a statement.

Gillespie, who took up other tough-on-crime measures, similarly to Taylor this year, said Memphis residents are tired of “career criminals exploiting the bail process to quickly return to our community and victimize others.”

He contended bail should “never” be reduced based on the amount of money defendants have and said the new law ensures fair treatment by basing bail on factors such as the severity of a crime and the threat posed by the defendant.

The bail industry didn’t take a position on the legislation when it was proposed this year. It took effect May 1 when Gov. Bill Lee signed it into law.

Murfreesboro attorney Joel Moseley, an expert on bail law, said, for practical purposes, the law won’t have much effect on the courts.

“The pressures that were pushing people out of jail are there anyway. And I don’t think there was a great deal of investigation as to the financial capacity of the defendant at the time bail is set,” Moseley said.

Judges and magistrates involved in setting bail aren’t asking for tax returns or paycheck stubs, Moseley added, and he doesn’t believe that will happen under the new law.

Setting bail most likely will continue to be determined mainly on the severity of the offense, he said, and a bail hearing would be held at a later date.