MEMPHIS, Tenn. – The American Civil Liberties Union, the American Civil Liberties Union of Tennessee, Just City, and The Wharton Law Firm sent a letter to numerous Shelby County judicial and government officials today demanding that the county stop bail practices that violate the constitutional and statutory rights of people arrested in Shelby County.
“Jailing people simply due to their inability to afford a sum of money is unconstitutional and poor public policy,” said Andrea Woods, staff attorney with the ACLU’s Criminal Law Reform Project. “Shelby County officials should embrace this opportunity to remedy the county’s discriminatory, wealth-based detention practices. We would rather see smart systems fixes now than be forced to bring these issues to court.”
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.
“Shelby County keeps hundreds of people locked in jail every day without making any attempt to evaluate if they can afford the bail they were assigned, creating a wealth-based detention system that disproportionately harms limited income, Black and disabled people,” said Hedy Weinberg, ACLU-TN executive director. “A justice system that only treats people fairly if they have money isn’t about ‘justice’ at all.”
A person who is detained for even a few days will often face serious collateral consequences such as loss of employment, housing, education, health care, and child custody.
In 2019, Shelby County spent nearly $139 million, or 31 percent of the total county budget, on its two jail facilities.
“Because of this community's dependence on money bail, the Shelby County Jail is full of people who cannot pay for their freedom. There are proven alternatives to this counterproductive system – tools and policies that have worked in other cities just like Memphis to reduce crime, save money and help people,” stated Josh Spickler, executive director of Just City. “These methods work, but they require leadership. Today, we are inviting Shelby County leaders to join us for a long-overdue conversation about safe and effective alternatives to the money bail system. We hope they'll join us.”
Research demonstrates that money bail does not improve public safety or court appearance rates. Non-financial conditions of release — like unsecured bonds, reporting obligations, and phone and text message reminders of court dates — are more effective at ensuring public safety and court appearances.
The letter calls on the county to ensure that people who are arrested receive individualized bail hearings no later than 24 hours after a person’s arrest, with counsel; that a person’s financial circumstances are examined prior to any bail hearing; and that secured money bail is only imposed as a last resort. If an agreement about the proposed changes is not reached, litigation will be initiated.
The letter sent today can be found at: https://www.aclu-tn.org/wp-content/uploads/2021/12/FINAL-Demand-Letter-signed-12_1_21.pdf.