Critics say efforts to repeal bail reform could be unconstitutional
Amid concerns over crime in Memphis, some city residents and local and state leaders have blamed bail reform efforts and those tasked with implementing them, particularly local judges and judicial commissioners.

But legislation filed to combat those reforms may conflict with Shelby County’s 2023 Standing Bail Order and ultimately may be unconstitutional, critics have said.

One bill filed by state Sen. Brent Taylor, R-Eads, would prevent judicial commissioners from considering defendants’ financial situations when determining bail amounts, a hallmark of the bail order, which was announced in 2022 and took effect in February 2023.

Another bill Taylor filed would require a minimum bail for certain crimes. The proposal resembles a “bail schedule,” which prescribes an automatic bail amount for certain crimes regardless of an individual case’s facts.

“I think it’s highly problematic. I think it’s very likely unconstitutional, but it’s also bad policy,” Shelby County District Attorney General Steve Mulroy said Feb. 10 on the WKNO-TV program “Behind the Headlines.”

Mulroy said that although he supported other measures Taylor proposed, he disagreed with removing financial considerations for several reasons.

In Tennessee, defendants have a constitutional right to bail except when charged with capital offenses, those punishable by death. Mulroy explained that in non-capital cases, if a judge believes a defendant will reoffend on release or be a danger to the community, the judge can set a bail amount that is unaffordably high to ensure the defendant remains in jail.

“If you are never allowed to consider the defendant’s finances, you will never know what is unaffordably high, that’s one problem,” he said.

Tennessee’s current bail system says bail should be affordable if a person isn’t a danger to the community, isn’t likely to reoffend and isn’t a flight risk, Mulroy said.

“We shouldn’t have people languishing in 201 Poplar or jail who haven’t been convicted of any crime for months and months and months waiting for their day in court for the only reason that they can’t afford cash bail,” he said.

The scenario Mulroy describes is the reason the county’s standing bail order was implemented under legal threat. Several groups, including local nonprofit Just City and the American Civil Liberties Union, claimed that the county’s past bail practices were out of line with state and federal law and that defendants were being held in jail simply because they couldn’t afford to bail out.

An affordability calculator is now used that considers a defendant’s financial circumstances, although it isn’t the only factor considered. Other things, like the safety of the community, are also considered.

Not much has changed

Lead Judicial Commissioner John Marshall said although a defendant’s financial circumstance is a factor, not much has changed under the new system.

Marshall said in the last seven months, two-thirds of the bails set by judicial commissioners were unaffordable. Most defendants register $0 on the affordability calculator, he said, meaning they report they cannot pay any amount of bail within 24 hours without borrowing money.

Marshall acknowledged community concerns over the ability to verify a defendant’s income. But he said the pretrial services department, which screens defendants with the tool, doesn’t have time to do so because of the high case volume.

Marshall agreed Taylor’s financial proposal could be unconstitutional.

He pointed to Torres v. Collins, a 2020 case from Hamblen County, Tennessee, that he said guarantees defendants the right to an individualized hearing when setting bail and that considers their financial situations.

“If they (legislators) want to push that, that’s fine. But there may be constitutional problems with that,” he said.

Marshall also suggested that Taylor’s proposed bill to require judicial commissioners to set minimum bails for certain crimes could be unconstitutional as well, coming too close to a bail “schedule” — a practice where an automatic bail amount is prescribed for certain crimes regardless of an individual case’s circumstances.

The proposal would require that commissioners set bail at a minimum of $10,000 or more for Class B felonies and $20,000 or more for Class A felonies.

Marshall said commissioners would be on board because most of the bails they set for those crimes exceed those amounts.

He said the average bail commissioners set for Class A felonies is $234,000. For Class B felonies, it’s $75,000.

Marshall said Shelby County used to use a bail schedule when setting initial bail for some crimes, as did other counties, until it was challenged as unconstitutional.

The practice was never challenged in Shelby County, but after it was challenged in other state counties, Marshall said it was stopped locally.

Under the old system, he said misdemeanors and certain non-violent, low-level felonies all had an assigned bail amount given to a defendant by pretrial services. Now, judicial commissioners set initial bail for all crimes.

Although Marshall said that Taylor’s proposal could get challenged for being like a schedule, he also said that it reads slightly differently — in that it appears to give commissioners a starting place rather than a number with which they have to stick.

“This is like a floor. I’m not sure this is the same,” he said.

Crime is down but fears are up

Taylor’s proposals come at a time of heightened concern over local crime, yet recent data shows that it’s on a downward trend.

Overall crime started to drop at the end of last year, according to the Memphis Shelby County Crime Commission.

The city and the county’s overall crime rates — which include murder, robbery, burglary, theft and drug and weapons violations — fell 6.4% and 7.2%, respectively, in the fourth quarter of 2023, according to the privately funded nonprofit.

Josh Spickler, executive director of Just City, said that Taylor’s proposals won’t help to solve local crime.

“These are completely empty proposals. They will not do what Sen. Taylor or anybody wants to do,” he said.

He also agreed they are likely unconstitutional.

“These are fundamental pieces of our governing documents that they want to dispatch, and they are going to do some damage in the long run, and it’s not going to make us safe,” he said.

Attorney Alex Wharton, who along with Spickler and the ACLU threatened the lawsuit that led to the standing bail order, said that it’s Taylor’s and the other legislator’s prerogative to change what the law says.

But he said the proposal for bail minimums could be “problematic.”

“People aren’t facts, and cases aren’t robotic. Every case is different,” he said.

Both Spickler and Wharton said there are no current plans to revive a potential lawsuit against the county if Taylor’s bills are passed.

But even if there were, Taylor isn’t concerned.

“I’m not going to make law based on the threat of a lawsuit. I’m going to make law based on good public policy and if others disagree with that, they can take it to court,” he said.

Tennessee has had other recent constitutional challenges to state laws, including most recently in October.

Several groups, including local nonprofit OUTMemphis sued the state over its aggravated prostitution statute. The DOJ is now suing the state over the law as well. dailymemphian.com