Of all the overlapping issues in Shelby County criminal and juvenile court systems, cash bail may be the closest to seeing some reform with the Aug. 4 election Thursday.
For years, legal experts in Memphis and across Tennessee have said the Shelby County court system uses money bail to “set a price tag for your freedom” and regularly targets poor, Black and brown residents.
According to Tennessee state law, when someone is accused of a crime — with the exception of capital murder — the person should first be considered for release, depending on whether they’re at risk of fleeing or a risk to society. If they are not, the person should be released on their own recognizance — with the obligation to appear in court for all future proceedings.
“That’s what should happen, as the law is written,” said Willie Santana, a visiting assistant law professor at Lincoln Memorial University in Knoxville. “The purpose of bail is to ensure the progress of cases through the system so that people show up to court. Money bail is the last step the court should engage.”
Once a judge, clerk or magistrate imposes cash bail, the defendant can remain jailed in pretrial detention solely because they can’t afford to pay, not because they were convicted of a crime. Often, people with unpaid bail remain in jail for months, sometimes years, until their next court date.
Tennessee law is written to prevent excessive bail amounts. For example, the maximum bail for a misdemeanor charge is $1,000. If the defendant is charged with a felony that doesn’t involve a crime committed against a person, the law limits bail to $10,000.
“So it’s cascading effects of bad things that happen for the defendant if they’re detained pretrial. Incarceration is such a destabilizing event that causes all these other issues.”
Willie Santana, visiting assistant law professor at Lincoln Memorial University in Knoxville
It increases to $50,000 if the defendant is charged with a felony that involves a crime committed against a person. For people charged with homicide, the bail amount caps at $100,000. However, the law gives the court more discretion in setting higher bail amounts if the defendant is deemed a flight risk.
But the law’s limits only apply to bail set by the clerk of any circuit or criminal court. In Shelby County, bail is typically set by a judge or magistrate judge. Neither are bound by those limits.
“If the person can make that money bail, if they’re wealthy or have family resources, then the case just progresses. They get out. No problems,” Santana said. “It’s when they’re poor that things start to get really screwy and really unjust.”
For those stuck in jail for unpaid cash bail, the effects are detrimental and costly – in many ways and to many people.
A 2021 Brookings Institution study found that people who spent time in pretrial detention “faced subsequent long-term damage in the form of family separation, work interruption and loss of housing, or even death.” Having an arrest or jail time on record can decrease a person’s job prospects for up to four years, the study found, and can result in tens of thousands of dollars in lost income.
There’s also a correlation between high pretrial detention rates, high poverty rates, lower employment rates and less economic mobility for youth. In Shelby County, with a population just over 924,000, 19% of people live in poverty, census data show.
According to a 2021 report by the Vera Institute of Justice, Shelby County spent over $138.8 million on its two jails in 2019. That’s one-third of the county’s overall budget. That’s also one of the highest rates of spending on county jails in Tennessee – second only to nearby Madison County.
Santana said jail time also increases a person’s likelihood of being convicted by 30%, regardless of guilt or innocence.
“So it’s cascading effects of bad things that happen for the defendant if they’re detained pretrial,” Santana said. “Incarceration is such a destabilizing event that causes all these other issues.”
After months of lawsuit threats by the American Civil Liberties Union, Just City and the Wharton Firm, the Shelby County Board of Commissioners is primed to pass a resolution to establish a room for bail hearings, as first reported in the Commercial Appeal. The board will decide soon if it wants to allocate $3.5 million to bring the bail hearing room to life within six months.
“Bail is not supposed to be a punishment.”
Santana
The board’s next meeting is Aug. 8, the earliest the resolution could be passed to establish a bail hearing room in Shelby County courts.
The creation of the bail hearing room aims to “promote equitable treatment among arrested individuals regardless of financial status.” If the resolution passes, judicial commissioners would only be allowed to impose cash bail after the court has deemed the defendant’s release a public safety risk. Judicial commissioners would also take into consideration a defendant’s likelihood of returning to court when deciding between release on recognizance or setting a bail amount.
Judicial commissioners would only be able to set bail amounts based on the defendant’s ability to pay, adhering to a financial assessment tool administered by the county’s pretrial services department.
According to Santana, that’s the course of action that should be taken: “Bail is not supposed to be punishment.”
Santana has worked in East Tennessee as a lawyer on both sides of the courtroom; he’s a former public defender and a former prosecutor. Now, as a law professor, he dedicates much of his time researching complex, punitive cash bail and sentencing practices — and solutions to these issues.
“The system, at its core, needs some readjustment or some rebalancing because it all feeds on itself,” Santana said. “We’ve become so polarized that it’s hard to see those individuals as what they should be.”
What DA candidates say about cash bail
A combination of people and entities – from Shelby County Pretrial Services, law enforcement officers and prosecutors to judges and clerks – has a hand in determining a defendant’s bond. The leaders of these posts are elected positions, most of which will be decided by Shelby County voters on Thursday.
Current Shelby County District Attorney Amy Weirich, a Republican, who is up for reelection on Aug. 4, did not respond to MLK50’s request for an interview. But, in an interview posted this week, when the Tennessee Bar Association asked her if bail bond reform was necessary, she said it was, but that she didn’t think eliminating cash bail was the answer.
“How can we ensure we are detaining the individuals we are afraid of and not the ones we are just mad at?”
Shelby County District Attorney Amy Weirich in a 2019 op-ed from The Tennesseean
“Without cash bail, we would have no way to protect the public and ensure the offender returns to court,” she said. “ At the same time, low-level offenders charged with low-level offenses shouldn’t be detained pretrial simply because they don’t have adequate financial means. Your bond should reflect the current crime and your past criminal history.”
Weirich said the current system does not allow those who re-offend while on bond to get a higher bond. She noted the DA’s office isn’t involved in setting bonds. “I believe we need a system in which bail is set by a judge after a hearing that includes our office, attorney for the defendant and the victim.”
And in a 2019 op-ed in The Tennessean, she outlined the DA office’s goals to make cash bail more equitable for defendants.
“How can we ensure we are detaining the individuals we are afraid of and not the ones we are just mad at?” Weirich asked in the op-ed.
Weirich’s goals to answer that question included rehauling how pretrial services assess a person’s recommended bail amount, which was determined by the MacArthur Foundation to be “ineffective” and in need of renewal. “They said we could do more to reduce the number of [jail] inmates who are neither at risk of re-offending nor fleeing,” Weirich wrote.
“The initial bails are often excessive, and your ability to either go on with your life…or to be stuck in 201 Poplar for 18 months or longer shouldn’t depend on how much money you have.”
Steve Mulroy, Democractic candidate for Shelby County District Attorney
But while a new bond assessment tool went into effect July 1, 2019, with the goal of releasing “low-risk offenders on their own recognizance while protecting the public from dangerous, high-risk offenders,” Weirich acknowledged that the tool would not fix the issue of wealth determining who gets released.
Democratic DA candidate Steve Mulroy believes Memphis’ bail system is broken, so much so that fixing it is one of his key platform promises.
“The initial bails are often excessive, and your ability to either go on with your life…or to be stuck in 201 Poplar for 18 months or longer shouldn’t depend on how much money you have. All too often, that’s the case,” Mulroy told MLK50 in an interview.
Mulroy said, at minimum, courts should regularly hold individualized bail hearings before a judge, where the defendant’s ability to pay a set bail amount would be considered case-by-case. These hearings, Mulroy said, don’t always happen for every defendant.
“I would say that putting aside very serious, violent offenses, presumption would be in favor of pretrial release, absent specific evidence that that particular defendant is either a flight risk or a danger to the community,” Mulroy said. “What I’m talking about would actually be consistent with Tennessee state law.”
According to the Shelby County Sheriff’s Office May 2022 Jail Report Card, an average of 2,219 people are detained in the Shelby County Jail at 201 Poplar Ave. The jail population is overwhelmingly Black, and many are held in pretrial detention for more than 500 days, Mulroy told MLK50.
“So once again, we’ve got an example where the system skews harsher on African Americans, and a significant percentage of them will eventually be released without a conviction,” Mulroy said.
“They say you innocent until proven guilty, but really, you guilty until proven innocent.”
Carlton Brown, proponent of criminal justice reform
Carlton Brown still remembers the moment in 2014 when Memphis police officers knocked on the front door of his grandmother’s home in Orange Mound. Brown said the police officers had a warrant for his arrest and hauled the Black teenager, then 15 years old, out just as he was getting ready for his new job at McDonald’s. It was the last time Brown would see the outside of a detention center or jail for the next five years.
“I was praying I would be able to go to a youth development center instead of over to 201. That didn’t happen,” Brown said.
Facing felony charges of especially aggravated robbery and aggravated assault, Brown was held without bond at the Juvenile Detention Center and the Shelby County Jail East facility while his case was still in the juvenile court system.
According to Tennessee’s “Right to Bail” law, the court is prohibited from setting a bail amount over $50,000 if the defendant is charged with a felony that involves a crime committed against a person, unless the defendant is deemed a flight risk.
In Brown’s case, he was transferred from juvenile to adult court with a $250,000 bail at 16, without a bail hearing, he said. It was tens of thousands of dollars above the bail amount he originally expected.
“Any human that’s held and accused of doing something, not found guilty of, it shouldn’t really be a bail. They should at least get one chance to prove themselves,” Brown said.
On his 18th birthday, Brown said he was transferred to the county jail. Prosecutors threatened him with an 81-year prison sentence, Brown told MLK50, pushing him to take a plea deal. He was held in the county jail until he was 20 years old. In all, he spent five years imprisoned.
“They say you innocent until proven guilty,” Brown said, “but really, you guilty until proven innocent.”
Released from jail nearly three years ago, the Frayser and Orange Mound native now works for Waste Pro in Memphis. He is an avid proponent of criminal justice reform, supporting local organizations like the Countywide Juvenile Justice Consortium, marking a new beginning for Brown.
Help, no strings attached
To combat the systemic issue of people being held in jail simply because they cannot pay bail, Just City, a Memphis-based criminal justice reform organization, started the Memphis Community Bail Fund five years ago. Just City executive director Josh Spickler said they’ve bailed out more than 1,000 people from Shelby County jails and paid about $2 million in bail from their rotating fund.
Just City works with public defenders to identify good candidates, generally those charged with nonviolent misdemeanors and low-level felonies, who also have bail amounts of $5,000 or less, and pays the costs, Spickler said, no strings attached.
“The idea of the bail fund is to basically poke a hole in the idea that money matters,” Spickler said. “What we’ve found over the years is that more than 90% of the people we pay bail for come back to court. That is the highest appearance rate of any type of release.”
Like Santana, Spickler said cash bail was never intended to be used to keep people in jail.
“Not because we believe that’s true. That’s what Tennessee law says,” Spickler said. “Money bail, a price tag for your freedom, should be the last thing that a judge or a judicial commissioner or the decision maker, in this instance, uses.”
This story has been updated to clarify how bail is set in Shelby County.
Brittany Brown is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email her at brittany.brown@mlk50.com
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