By Rena Abdusalam
MEMPHIS, TN – A new bail process, created by Shelby County, TN, will make the county’s system one of the fairest in the nation, supporters claim.
The latest system includes creation of a new bail hearing courtroom; individualized bail hearings with counsel no later than three days after a person’s arrest; a person’s financial circumstances to be under exam prior to any decision; reminders of court; and, only as a last resort, imposition of secured money bail.
The system also allows judges to make individualized decisions in their cases, after hearing from the government and the defense counsel.
The reforms were set in motion by the American Civil Liberties Union, the American Civil Liberties Union of Tennessee, Just City and The Wharton Law Firm, in partnership with Stand for Children Tennessee and the Official Black Lives Matter Memphis Chapter.
The institutions issued a letter and negotiated with the Shelby County judiciary and government officials, demanding the county should stop violating the constitutional and statutory rights of people through bail practices.
As a last resort to judges, Tennessee law requires the bails to be imposed only if less confining conditions are deemed insufficient to ensure that someone appears for their trial.
Despite that, the U.S Constitution requires courts to hold bail hearings, with an attorney’s representation, within a sensible time after arrest, and to take circumstances into account, including the ability to pay so that no one is imprisoned because of poverty, or without sufficient justification.
While those who faced the same charges were freed because they could afford to pay money bail, a person, under Shelby County’s prior pretrial system, could be held for weeks or longer without a bail hearing with counsel, and some people never had a hearing for at all—the ability to pay was not considered when bail was set, leaving those who could not afford bail detained indefinitely.
By February 2023, the new bail system is expected to go into full effect.
“With these changes, Shelby County has the opportunity to be a national leader for pretrial justice. These much-needed improvements are a testament to the power of local officials, advocates and community members working together to solve a problem,” said staff attorney with the ACLU Criminal Law Reform Project, Andrea Woods.
Woods added, “We applaud the county’s collaboration and leadership in ensuring that no one is needlessly confined to a jail cell, that everyone awaiting trial receives fair treatment, and that community well-being is supported through alternatives to incarceration.”
“As an abolitionist organization, we are cautiously optimistic about what this means as we move forward with implementation. We are most excited about the ability to collect data and to actually provide transparency about what happens within our current justice systems,” said Shahidah Jones of the Official Black Lives Matter Memphis chapter.
Marquita Brown, also of BLM, said, “I am the supportive services lead for the people that are bailed out by our organization. My job is to assist with acquiring legal counsel, transportation to court dates, and stabilization. Reform was necessary to stop bail practices that violate the constitutional and statutory rights of people arrested in Shelby County.”
Brown added, “These reforms are a great place to start, as this process institutes counsel for the individual and also speeds up the process by providing a bond hearing within 72 hours. The assistance of the bail calculator to determine what an individual can afford is also very important because all of the people we bail out cannot afford the full bail or the 10% that most bond companies require.”
Executive director of Just City, Josh Spickler, argued, “Bail reform advocates from around the country are looking to Shelby County as an example of how a community can realize meaningful reform when forward-thinking leaders decide to collaborate instead of litigating. We will soon have a smaller jail population, safer streets, and significant cost savings as a result.”
ACLU of Tennessee legal director, Stella Yarbrough noted, “Shelby County has taken a huge step away from wealth-based incarceration and toward a transparent system rooted in due process. This new bail system not only brings the county in line with the Constitution, it establishes one of the fairest bail systems in the nation, yielding an immense, positive impact on countless people’s lives.”
And Alexander Wharton of the Wharton Law Firm, said, “I am pleased to have participated in a process where all interested parties and voices participated in changing our current bail setting system to comply with state law and the principles of the U.S. Constitution. This is an example of the ability of all parties working together to help solve problems within our system.”
Presiding Judge General Sessions Criminal Court, Louis J. Montesi, Jr., said, “The judges of the General Sessions Criminal Court of Shelby County are proud to be a part of the bail reform changes to establish and ensure a fair, just and equal system for pretrial release for persons charged with crimes with proper consideration for the presumption of innocence, due process of law and public safety.”