MEMPHIS, Tenn. – Shelby County has created a new bail process that will make the county’s system one of the fairest in the nation. The new system includes creation of a new bail hearing courtroom; individualized bail hearings with counsel no later than three days after a person’s arrest; examination of a person’s financial circumstances prior to any decision; court reminders; and imposition of secured money bail only as a last resort.
The system also allows judges to continue to make individualized decisions in every case before them, after hearing from both the government and the accused person’s defense counsel.
The reforms were instituted after 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, issued a letter and initiated negotiations with numerous Shelby 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.
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 so that no one is incarcerated solely due to their poverty, or without adequate justification.
Under Shelby County’s prior pretrial system, a person could be held for weeks or longer without a bail hearing with counsel, and most people never had a bail hearing at all; ability to pay was not considered when bail was set, leaving those who could not afford to pay detained indefinitely, even if they were not a flight or safety risk, while those who faced the same charges but could afford to pay money bail were freed until trial.
The new bail system is expected to go into full effect by February 2023.
Statements from attorneys, community advocates and county officials:
Andrea Woods, staff attorney with the ACLU Criminal Law Reform Project: “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. 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.”
Josh Spickler, executive director of Just City: “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 litigate. The entire Shelby County Commission, Mayor Harris, and countless members of his administration rallied around this opportunity. We will soon have a smaller jail population, safer streets, and significant cost savings as a result.”
Stella Yarbrough, ACLU of Tennessee legal director: “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.”
Alexander Wharton of The Wharton Law Firm: “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.”
Shahidah Jones of the Official Black Lives Matter Memphis chapter: “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.”
Shelby County Attorney Marlinee Iverson: “Shelby County and its officials are invested in ensuring that every arrested person who enters the criminal justice system receives adequate constitutional protections and a fair process. The new bail hearing system reflects the commitment of local leaders, including Mayor Lee Harris and Chief Public Defender Phyllis Aluko, to equal treatment for all residents, regardless of their income.”
Willie F. Brooks Jr., chairman of the Shelby County Board of Commissioners: “The Shelby County Board of Commissioners unanimously approved changes to the bail system in order to promote equality, public safety, and to reduce the high costs of unnecessary pretrial incarceration. These forward-looking solutions reflect growing evidence that supportive interventions, rather than incarceration, promote positive outcomes in most cases.”
District Attorney General-elect Steve Mulroy: “I look forward to working in support of these groundbreaking reforms and ensuring that my office only seeks money bail where needed for public safety. Pretrial detention should be the exception, not the rule.”
Louis J. Montesi, Jr., Presiding Judge General Sessions Criminal Court: “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.”
Marquita Brown, LMSW, representative of the Official Black Lives Matter Memphis chapter: “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. 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. This is an exciting moment in Shelby County history and I am looking forward to future changes.”
A copy of the Shelby County Commission’s resolution creating a new bail hearing room can be found at: https://www.aclu-tn.org/wp-content/uploads/2022/08/Resolution-IN-ORDER-TO-ESTABLISH-A-NEW-BAIL-HEARING-ROOM-signed.pdf
A copy of the general sessions court’s new standing bail order can be found at: https://www.aclu-tn.org/wp-content/uploads/2022/08/SIGNED-Standing-Bail-Order-8_15_22-w-Feb-implementation-date.pdf.
More information on bail in Shelby County prior to these reforms can be found at: https://www.aclu-tn.org/money-bail-shelby-county-tennessee-infographic/.
More information on bail reform efforts in Shelby County can be found at: https://www.aclu-tn.org/bail-reform/.