When Tennessee voters go to the polls to choose their next governor, they will also be asked to vote on a constitutional amendment that would change how judges determine bail for defendants charged with some serious crimes.
Called Amendment #1, the proposed constitutional amendment seeks to make more than 70 crimes eligible for no-bail detention, including aggravated rape and grave torture. Judges could still allow bail and must state their reasons for granting or denying it. As it stands, judges can only deny bail in Tennessee for what are known as capital offenses, effectively only first-degree murder.
“We need to empower our judges to deny bail when they believe that someone is a genuine threat to society,” said Sen. Jack Johnson, R-Franklin, who co-sponsored the amendment resolution with House Speaker Cameron Sexton, R-Crossville. “It will allow our judges to deny bail and keep someone incarcerated if they’re charged with a violent crime.”
Many Republican lawmakers and some Democrats have supported the proposed amendment as a means of improving public safety and of preventing those who are accused of violent crimes from hurting others while awaiting trial. But several Tennessee lawmakers have opposed the measure, raising concerns of increased costs of incarceration, the potential for further overcrowding in local jails and diminished protections for the accused.
“Taking somebody’s liberty is not a small thing,” Rep. Justin Pearson, D-Memphis, said as the amendment resolution was being debated last year. “When we talk about safety and protecting people, we also have to protect the people who are being sentenced who have not committed the crime for which they are being accused.”
‘This is not a narrow change’
Johnson has often described the amendment as giving judges more tools when determining bail for the “most violent and heinous” crimes. The six crimes explicitly listed on the ballot include aggravated rape, aggravated child rape, acts of terrorism, first and second-degree murder and grave torture.
There is also a wider list of crimes that the amendment applies to, including any crime requiring someone to complete at least 85% of their sentence. Dozens of serious crimes fall under that umbrella. While not specifically listed for voters, those include vehicular homicide, voluntary manslaughter, possession of a firearm while attempting a dangerous felony, selling controlled substances in severe felony cases with prior and severe felony drug convictions. Several Tennessee lawmakers have objected to the scope of crimes that are included — and that they aren’t spelled out on the ballot.
“This is not a narrow change,” said Sen. Jeff Yarbro, D-Nashville, during legislative session last year. “This adds 73 or so offenses to a list.”
Several lawmakers have also taken issue with what no-bail detention could mean for someone who is later found not guilty or whose case is dismissed. Tennessee had a nearly 20% statewide dismissal rate from 2011 to 2017, according to national nonprofit Measures For Justice. Shelby County reported a 33% dismissal rate for violent cases in December 2025. Meanwhile, the length of time before a case is resolved in Tennessee can last several months, even more than a year.
“This will inhibit someone who may be innocent from being able to continue their lives,” said Sen. London Lamar, D-Memphis, during discussion on the amendment resolution last year. “They could lose their business, their home, their family and there is no restitution for them if they were being held and end up being found not guilty.”
Costs related to increased incarceration for those denied bail has also been a significant concern for those opposed to Amendment #1. Fewer bail releases could mean defendants are incarcerated for longer periods. Already, overcrowded jails and understaffed prisons have been challenging across the state.
The Tennessee Department of Correction spent more than $1 billion on incarceration in fiscal year 2025, according to a recent Sycamore Institute report. The population of people being held before trial has increased by nearly 140% since 2000, compared to a 10% increase in the population of people who have gone though the court process and been convicted.
The state does not reimburse local governments for accused defendants awaiting trial, which is the largest share of the jail population. Several lawmakers have asked how counties will cover increased costs if judges hold more people without bail.
The fiscal note attached to the 2025 legislation for Amendment #1 gave a nearly $10,000 estimate for publishing the ballot. It did not include estimates for any additional incarceration or court expenses to be borne by taxpayers.
“I can see a train wreck coming,” Sen. Todd Gardenhire, R-Chattanooga, said in 2024, describing a shortage of beds in jails in his county. “We haven’t built the jails necessary to fulfill our obligation to put the bad people away.”
He said he objected to the fiscal note for focusing only on the ballot printing, “and not the unintended consequences that everyone of us is going to have to face.”
Some lawmakers also shared reservations about the language of the bill, that rather than allow judges to deny bail, it instructs them to deny bail as the default. Others emphasized that judges already have discretion to set bail at higher rates.
‘Those people can’t reoffend’
Johnson has assured that constitutional protections would remain in place for the accused under Amendment #1. He emphasized that for a judge to deny bail, proof must be evident or presumption great, which is the current standard in the Constitution. And, if someone is denied bail, the decision can be appealed.
Among his arguments for the amendment is that wealth, or lack thereof, should not determine whether someone is released. Under the current Constitution, a defendant accused of the Amendment #1 crimes can still pay a large sum to avoid detention, even if they are a threat to others.
“[Judges] can make that bail very high, but now you’ve given an opportunity for someone who has access to significant resources to get out of jail,” Johnson said. “Someone who doesn’t is going to remain in jail.”
Johnson said he does not anticipate a significant increase in costs or more overcrowding. The instances where a judge would decide to deny bail for the crimes included in the amendment is relatively low, he said.
He has also defended the limited language that appears on the ballot. He says the decision to not list each eligible crime on the ballot was to help bring clarity to judges, should the crimes requiring 85% of sentences change in statute. He also wanted to avoid presenting a lengthy, multi-page amendment to voters, and says Tennessee voters are capable of completing their own due diligence on the amendment.
Amendment #1 has support from the Tennessee Sheriff’s Association and the Tennessee District Attorneys General Conference, according to Johnson’s office, and more than 100 lawmakers, including some Democrats, have supported it as a means to prevent more violent crimes.
“You know who doesn’t become a repeat offender? The one who stays in prison,” Rep. Kip Capley, R-Summertown, said during legislative discussion. “Those people can’t reoffend.”
