Tennessee Senate advances constitutional amendment to allow judges to deny bail

Yahoo

18-03-2025

A Republican effort to amend the Tennessee Constitution to allow judges to deny bail to some criminal defendants continues to advance through the General Assembly.
Senate Republicans on Monday gave final sign off to add the constitutional amendment to the 2026 gubernatorial ballot for a full public vote, though the measure still faces several hurdles in the House.
The constitutional amendment would give Tennessee judges the ability to deny pre-trial bail release to defendants charged with certain serious crimes like terrorism, second degree murder and rape. The amendment would apply to dozens of criminal offenses.
The bail reform effort has picked up both bipartisan support and opposition, though Republican leadership in both chambers are pushing hard to get the amendment through this session and on to a full state vote.
Opponents of the effort have argued there is a slippery constitutional slope in keeping a defendant in jail if they haven't yet been found guilty, and others have warned an increase in pre-trial detention could harm already overburdened local jail systems with skyrocketing costs.
"We should think long and hard before we push forward on curtailing the rights of the people we represent," Sen. Jeff Yarbro, D-Nashville, said Monday.
Senate Majority Leader Jack Johnson, R-Franklin, said state courts are currently "hamstrung" by the state Constitution, which currently only allows pre-trial detention for capital offenses.
With a U.S. Supreme Court precedent determining only murder can be considered a capital offense, Johnson said judges' hands are tied if they think defendants charged with a crime like rape would be danger to the community before they go to trial.
"Our No. 1 job up here is public safety," Johnson said. "It's public safety, and to equip our court systems with the tools they need to keep our communities safe."
Sen. London Lamar, D-Memphis, warned Tennesseans could likely see increases in local taxes to pay for the jail space needed. Unlike other bills, there is no clear financial analysis tied to the constitutional amendment. With more defendants held in jail awaiting trial, local communities could bear additional costs.
Sen. Todd Gardenhire, R-Chattanooga, warned his colleagues about the potential for ballooning costs on local governments.
"I've heard nothing from anybody about how we're going to pay for this when it hits the fan. Nothing. Crickets," Gardenhire said, calling hidden costs the "unintended consequence of a good idea." Gardenhire was the sole Republican to vote against the amendment.
Johnson said local authorities like sheriffs and district attorneys have supported the amendment despite potential costs.
"They believe the juice is worth the squeeze," Johnson said.
The Tennessee District Attorneys General Conference last week passed a resolution endorsing the constitutional measure.
"The Tennessee District Attorneys General Conference believes this change to the constitution will enhance public safety, reduce the revolving door of offenders charged with violent and sexual crimes, and will promote greater public confidence in the criminal justice system and the rule of law in this state," the conference said in a statement.
Legal experts have raised concerns about the amendment's vague language, as the amendment voters would see on a state ballot does not list every crime that could be eligible for pre-trial detention. Instead, it references "any other offense" under which a convicted person could not be released before serving at least 85% of a sentence.
Notably, the amendment as written would also allow the legislature to change which offenses qualify in the "any other offense" clause until Nov. 3, 2026. With early voting, this means Tennessee voters could cast a vote for or against the amendment before Nov. 3 and its very definition could be changed by the time polls close.
Jeff Clayton, executive director of the American Bail Coalition, said his organization lobbied House Speaker Cameron Sexton, R-Crossville, last year to eliminate the "85%" offenses or make the language more clear in the amendment. The push to change the wording ultimately did not advance in 2024 and the language was not changed when it was filed this year.
Clayton has been among the most outspoken opponents of the measure, arguing it contradicts an expected presumption of innocence and similar measures have led to skyrocketing costs in states like New Jersey.
"It's not going to fix the crime problem in Tennessee, period," Clayton said. "I don't think anyone has presented any evidence of that. I think throwing in 83 charges is what the Supreme Court would call a scattershot attempt at crime control versus a targeted approach, which is what we support."
The amendment has been a particular interest of Sexton, who has repeatedly pushed for the amendment and unusually sat in on a House Judiciary Committee this session to cast a vote. The speaker rarely openly participates in the committee process, but Sexton directed multiple questions to witnesses in favor of the amendment.
He has also openly admonished the bail industry, which has lobbied against the resolution, in addition to any lawmakers who might be considering opposing the effort.
"If this doesn't pass, the individuals who decide this isn't something they want to vote for are allowing a serial rapist to go free on bail," Sexton said. "You're taking away the ability of the judges to keep the public safe and not giving them the tools to look at that criminal and say it is better to incapacitate them than to have another victim."
Sexton has stressed the amendment wouldn't be a "mandate" on judges, but rather give judges the discretion to restrict pre-trial bail when they deem it prudent.
The amendment has had some bipartisan support. In committee, Rep. G.A. Hardaway, D-Memphis, said he felt the resolution properly balanced the rights of defendants and public safety.
Meanwhile, two Senate Republicans on Monday announced they had changed their mind on the measure. Sen. Rusty Crowe, R-Johnson City, said he felt voters deserved a vote on the issue despite his personal issues with the amendment.
To amend the state Constitution, proposed amendments must be approved by two separate General Assemblies: first by simple majority, and then again after an election year by two-thirds vote. The Senate approved the measure Monday in a 23-6 vote, enough to secure the two-thirds threshold.
The amendment on bail initially passed last year, meaning lawmakers must pass it again this year or in 2026 before it could appear on the November 2026 gubernatorial ballot.
This article originally appeared on Nashville Tennessean: TN Senate advances constitutional amendment to let judges to deny bail