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Tennessee lawmakers considering changes to the state's bail system

Advocates for bail reform protest outside the Justice A.A. Birch Building in downtown Nashville in 2019.
Samantha Max
Advocates for bail reform protest outside the Justice A.A. Birch Building in downtown Nashville in 2019.

Criminal justice is a hot topic in the Tennessee legislature this year. And while some bills would keep people behind bars for longer, others aim to get people out — especially those held before their trials.

In addition to proposed updates to the state’s sentencing statute, lawmakers are also considering multiple changes to the bail system.

The proposed reforms stem from the idea that in America, people are considered innocent until proven guilty. Multiple programs allow people to leave jail while their cases move through the courts.

Bail is one of them. It’s an amount of money that’s set to encourage people to show up to court if they’re released from jail after being arrested. If you can pay, you get to go home.

But in Tennessee, many people are stuck in jail because they can’t afford bail. Of the 24,264 people held in jails as of Jan. 31, according to the state Department of Correction, about 59% of them were being detained pre-trial.

“It’s worth asking, what is promised in the Tennessee Constitution, which is a right to bail for all people, except for those charged with capital offenses,” says Jasmine Heiss. She studies incarceration trends for the Vera Institute of Justice, which advocates for bail reform. “How do we make those promises real for people?”

Heiss says Tennessee’s current bail system operates like a patchwork — with different practices in each of the state’s 95 counties. The goal of the new legislation, she says, is to make the system more consistent.

“As we look at the incredible variation in pre-trial practice and bail-setting across the state,” she says, “I think the question is: How do we strengthen it so that we’re sure that jail incarceration, pre-trial detention, is being used as that carefully limited exception in cases where there is a public safety concern, and not just in those cases where it is criminalizing poverty and treating unconvicted, poor people like criminals?”
At least three bills progressing through the legislature would alter how bail is used in Tennessee.

One (SB2377 / HB2367) would create a system that would send alerts to all “interested parties” at each step of the legal process. That means both victims and those accused of committing crimes would be notified at least 24 hours before every court hearing. Since bail is meant to incentivize people to come to court, a notification system could help people meet the requirements of their release.

Another piece of legislation (SB2237 / HB2355) would regulate bail bond agencies, which serve as a go-between when someone can’t afford their full bail amount. The companies allow people who have been arrested to pay them a small percentage of their bail in exchange for their release and are responsible for ensuring that their clients show up for their court dates.

This bill more clearly defines the rules and protocols for such businesses. It would require bail bond agencies to register with the Department of Commerce and Insurance. They would need to meet certain requirements to keep their registration, including 30 hours of continuing education each year — up from eight. The legislation also outlines why a bonding agency could face discipline, including disruptive behavior in court.
A third bill (SB/1791 / HB1936) would ensure people have a bail hearing within 48 hours of their arrest. It would also give courts clearer instructions for those proceedings.

Bail reforms have been signed into law in several states in recent years, including Alaska, New Jersey and New York. Some have gone so far as to eliminate cash bail in nearly all cases and trust that people will return for court dates if they are released from jail pre-trial.
But those changes have also faced backlash from advocates for a “tough on crime” approach as violence rises in many cities — even though the spikes in shootings and other violent crimes have also occurred in places that have not scaled back their use of cash bail. Bail bonding companies have pushed back on proposals to overhaul the system, as well.

State Rep. Vincent Dixie, D-Nashville, who owns a bail bonding company, told WPLN News during a 2020 town hall with the Nashville Community Bail Fund that he thinks the priority should be on funding and supporting other programs to improve the legal process, like the public defender’s office.

“People always say bail reform. And my biggest issue is not bail reform; it’s criminal justice system reform that we need to deal with,” Dixie said. “Because as a bondsman, all I do is provide a service.”

Samantha Max covers criminal justice for WPLN and joins the newroom through the Report for America program. This is her second year with Report for America: She spent her first year in Macon, Ga., covering health and inequity for The Telegraph and
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