Bail Reform

On any given night in the United States, nearly 450,000 people who are legally presumed innocent sit in jail only because they cannot afford to pay a monetary bail amount. Today in our state, we have a two tiered justice system where poor people are punished more harshly than people with money. Locking up people before trial because they cannot afford to pay bail is a leading cause of mass incarceration in Tennessee and elsewhere.

People suffer in local jails while awaiting trial, often for low-level offenses, and many working Tennesseans lose their jobs because they are unable to make bail and return to their homes and places of employment while waiting for their day in court. Most importantly, putting bail out of reach for thousands of low-income people violates our fundamental principle of innocent until proven guilty.

Reforming our state’s treatment of people before trial, including the use of money bail, will result in fewer people unnecessarily held behind bars. This is why advocating for fair and effective alternatives to pretrial detention is an important part of the ACLU of Tennessee's Campaign for Smart Justice.

One of the areas where we, alongside our partners, are currently focusing on the need for bail reform is Shelby County.

Tennessee law requires that judges treat money bail as a last resort, to be imposed only if other less restrictive conditions are deemed insufficient to ensure that someone appears for their trial. The U.S. Constitution also requires courts to hold bail hearings within a reasonable time of arrest, with representation by an attorney, and to take individual circumstances into account, including a person’s ability to pay.

Under Shelby County’s current pretrial system, a person can be held for weeks or longer without a bail hearing with counsel, and ability to pay is not considered when bail is set, leaving those who cannot afford to pay detained indefinitely, even if they are not a flight or safety risk, while those who face the same charges but can afford to pay money bail are freed until trial.

ACLU-TN along the ACLU, Just City, The Wharton Law Firm and other partners are dedicated to working with Shelby County elected officials and judges to advocate for the reform of these unjust bail practices.

We sent a letter to county judicial and government officials demanding that the county stop bail practices that violate the constitutional and statutory rights of people arrested in Shelby County, and we are making the following proposals to fix the county’s pretrial system:

• Letter and Proposals for Local Judges This letter and the attached proposals preview components of true pretrial release/detention hearings that we view as essential.
• Proposed County Commission Resolution This resolution would express the county’s expectation that pretrial release determinations comply with state and federal law, and provide for data collection to evaluate the judicial commissioners program from this lens.
• Pretrial Reform Recommendations This document outlines reforms to other practices, including the provision of pretrial services and use of citation and release authority, to complement this system of release, to promote and fund sufficient supports for persons released pretrial, and to encourage long-term community safety and equity.
• Response to Shelby County's Redlines On March 3, 2022, the county attorney shared redlined versions of our first proposals for bail reform. This is our response, outlining key principles that are non-negotiable for us, and required by law.

• Money Bail in Shelby County, Tennessee
• Trapped in Jail for Being Poor: Money Bail in Davidson County, Tennessee

• Civil Rights Groups Demand Shelby County End Discriminatory, Wealth-Based Bail Practices (December 1, 2021, ACLU-TN).
• ACLU-TN's ‘In Our Backyards’ Storytelling Project Lifts Voices of Directly-Impacted Tennesseans (April 12, 2021, ACLU-TN).
• Nashville Community Bail Fund Reaches Agreement with Davidson County Criminal Court Clerk to End Garnishment of Cash Bonds (December 9, 2020, ACLU).
• Federal Court Blocks Court Rule that Unfairly Keeps Poor People in Jail (March 18, 2020, ACLU-TN).
• Groundbreaking Lawsuit Challenges Court Rule that Unfairly Keeps Poor People in Jail (February 5, 2020, ACLU).
• ACLU-TN and Civil Rights Corps File Friend of the Court Brief Supporting Bail Reform (June 5 , 2017)
• Civil Rights Groups Urge Court to Uphold Decision that Struck Down Unconstitutional Money Bail System in Harris County, Texas: Ruling Could Reform Bail Practices Across the Country (August 10, 2017)

• Nashville Community Bail Fund V. Gentry (September 14, 2021)
• State of Tennessee v. Weatherspoon Amicus Brief (July 25, 2017)

• In Our Backyards: Money Bail in Rural Tennessee (ACLU of Tennessee, September 2021).
• Ohio Could Save Big By Implementing Bail Reform: A Fiscal Impact Analysis (ACLU of Ohio, September 2020).
• Profiting Off Misery: Endeavour Capital and the Predatory Bail Industry (ACLU, December 2019).
• Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System (American Civil Liberties Union’s Campaign for Smart Justice and Color of Change, May 2017)
• No Money, No Freedom: The Need for Bail Reform (ACLU of Washington, September 2016)

• “Why We Can’t Go Backwards on Bail Reform,” by Jared Trujillo, Policy Counsel, Policy & Simon McCormack, Senior Writer, Communications (January 13, 2022, NYCLU)
• “Two Steps Forward, One Step Back: A Cautionary Tale About Bail ‘Reform’ in Georgia,” by Andrea Woods, Staff Attorney, Criminal Law Reform Project (September 24, 2020, ACLU).
• “Using Bail as Ransom Violates the Core Tenants of Pretrial Justice,” Andrea Woods, Staffy Attorney, Criminal Law Reform Project (February 5, 2020, ACLU).
• “America’s Pretrial System Is Broken. Here’s Our Vision to Fix It.,” by Andrea Woods, Staff Attorney, Criminal Law Reform Project & Portia Allen-Kyle, Advocacy and Policy Counsel, ACLU Campaign for Smart Justice (April 2, 2019, ACLU).
• “Kalief Browder’s Tragic Death and the Criminal Injustice of Our Bail System," by Udi Ofer, Deputy National Political Director and Director of Campaign for Smart Justice, ACLU (March 15, 2017)
• "We're Living in a Surveillance Society, So Why Do We Need Bail?," by Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project & Andrea Woods, Equal Justice Works Fellowship Attorney, Criminal Law Reform Project (April 25, 2017)
• "Behind Many ‘Mom and Pop’ Bail Bonds Shops Is a Huge Insurance Corporation Out to Profit From Misery," by Margaret Dooley-Sammuli, Criminal Justice and Drug Policy Director, ACLU of California (May 11, 2017)
• "Poverty Is Not a Crime, so Why Are People Being Trapped in Immigration Detention for Being Poor?," by Katie Egan, Washington Legislative Office & Joanne Lin, Senior Legislative Counsel, ACLU (September 21, 2016)

• "Suffocating effect of pretrial detention, bail costs in Shelby County | Opinion," by Jerome Davis and Jack Seigenthaler, The Commercial Appeal, (March 2022)
• “Illinois Becomes 1st State to Eliminate Cash Bail,” NPR (February 22, 2021)
• "Has bail reform in America finally reached a tipping point?," The Christian Science Monitor, (April 2017)
• "Bail-Bond System Exploits the Poor and Undermines Justice, ACLU Says," NBC News, (May 2017)
• "Conservatives Have a Stake in Bail Reform," The National Review, (July 2017)
• "Davidson County must reform unconstitutional bail practices," by Hedy Weinberg and Alec Karakatsanis, The Tennessean, (July 2017)