By Jerome Davis and Jack Seigenthaler

Just City recently paid bail for a man who was the caregiver for his mother, who was battling stage four cancer. He was thrown in jail for a non-violent drug offense and held on a bail he could not afford. He spent several days in jail—precious days away from his mother—before the Memphis Community Bail Fund could assist. Although his case was later dismissed, without our assistance, he would have spent even longer behind bars and potentially missed his mother’s last moments.  

This is but one example of Shelby County’s two-tiered system of pretrial detention, which punishes poor defendants without improving public safety.

Between January and October 2021, over 15,000 people, or 84% of people in the Shelby County Jail, were either required to pay bail or were unable to bond out. The average bond amount set for misdemeanors in Shelby County is $2,103.

An unnecessary disparity  

Just City has paid bail for more than 90 people who could not afford even a $100 bond. Situations like these happen far too often—taxpayers pay nearly two million dollars every year to house low-level offenders before trial. Unfortunately, Just City is only able to help a small number of the people trapped in our current criminal justice system, and many are not as lucky as this client. 

The U.S. Constitution and Tennessee’s laws protect people from being unnecessarily jailed before trial. Courts are constitutionally required to: hold bail hearings soon after arrest, usually within 24 - 48 hours; ensure the defendant has an attorney to represent them; and take individual circumstances into account when setting bail, including a person’s ability to pay. 

Further, Tennessee law requires that judges treat money bail as a last resort. That means people should only be held on bail if the judge decides less restrictive conditions are not enough to ensure the person appears for trial. 

But in Shelby County, judges are not following these laws. A person can be held for weeks or longer without a bail hearing. Ability to pay is not considered when bail is set, so those who cannot afford to pay remain jailed indefinitely. Meanwhile, people with resources, who face the same charges, can pay bail and walk free. 

Pretrial detention can have devastating consequences, especially for low-income people. Every day in jail is a day away from one’s children and family, a day away from work, a day of mental strife, and a day in a COVID-stricken environment. Further, rates of conviction increase when defendants remain incarcerated pre-trial, as they may see a guilty plea as the quickest way out of jail and back to their community. 

Pretrial detention practices in Shelby County disproportionately harm Black and brown people, who are more likely to be detained pretrial and less likely to be able to afford bail. Research suggests that Black and brown people are at least 10 - 25% more likely than white people to be detained or required to pay money bail. 

Harmful consequences, little results

Studies show that detaining more people before trial does not correlate with improved public safety. Typically, crime rates do not increase when a community works to reduce its jail population. As many as 25% more people could be released pretrial while decreasing crime rates, without posing a risk to public safety. 

Moreover, researchers have identified effective alternative methods of ensuring people show up to court. For example, many people simply forget their court date is coming up, and counties that send reminders see significant increases in appearance rates. 

Pretrial detention should be the exception, not the rule. Shelby County’s current bail system fails to improve public safety and unnecessarily punishes those who cannot afford release, while allowing people with resources to walk free before trial.

That's why Just City and the ACLU of Tennessee hope to work with leaders in Shelby County to fix this broken, two-tiered system.

Access to justice should not depend on how much money you have. 

Jerome Davis is the bail specialist at Just City.

Jack Seigenthaler is a policy strategist with the ACLU of Tennessee. 

The Op-Ed Appeared in the Commercial Appeal on May 18, 2022.