Davidson County must reform unconstitutional bail practices

By Hedy Weinberg and Alec Karakatsanis

Each year in Davidson County, thousands of legally innocent people are in jail cells — not because they have been found dangerous or at risk of fleeing before they stand trial, but because they cannot purchase their freedom.

In 2016, the average amount of secured money bail imposed on people charged with misdemeanors in Davidson County was more than $5,000. Thousands of people are jailed in Davidson County simply because they cannot pay the amount of money demanded in exchange for their liberty.

Thirty years ago, U.S. Supreme Court Chief Justice William Rehnquist wrote, “In our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception.”

But in the Metro area, with its reflexive use of secured money bail, 60 percent of misdemeanor arrestees are in jail for the entirety of their cases. By contrast, New York City detains approximately 3 percent of its misdemeanor arrestees prior to trial, and Washington, D.C., approximately 1.5 percent.

In Metro Nashville, judges routinely impose secured money bail without any inquiry into ability to pay and without meaningful consideration of alternative, non-financial conditions of release. Money bail thus functions to detain the thousands of people who cannot pay it — but without the accompanying legal procedures that the Supreme Court has held must be part of valid pretrial detention. This practice violates the Due Process and Equal Protection clauses of the 14th Amendment to the United States Constitution, and courts across the country have struck down similar systems accordingly.

Trapped in Jail for Being Poor: Money Bail in Davidson County Infographic

By making pretrial freedom dependent on access to cash, Davidson County’s secured money bail system creates a two-tiered system of justice, incarcerating the most impoverished while wealthier arrestees are freed. Those who can post the demanded amount of money are able to walk out the doors of the Metro jail and return to their jobs, families and homes. The rest are left to languish in jail, which is devastating for arrestees, their families and their communities. Pretrial detention increases the likelihood of conviction, the likelihood of a jail sentence, and the length of the sentence imposed. It causes lives to unravel because people lose their jobs, cars, housing and child custody when they are removed from their communities and put in jail cells before they have even been tried or convicted.

Adding insult to injury, our current money bail system is not effective. Every reliable academic study reports that non-financial conditions, or even unsecured money bail, in which no money is required upfront, are as effective — if not more effective — than secured money bail at getting people back to court. Such non-financial conditions would also better serve the community. Some examples of such conditions, tailored to allow for supervision as appropriate, include reporting to a pre-trial services office, reminder calls or texts, or maintaining education and employment routines.

Detaining people prior to trial for misdemeanors is also costly. A federal court recently issued a preliminary injunction to stop Harris County, Texas, from money bail practices that are virtually the same as Davidson County’s. University of Pennsylvania researchers estimated that, had Harris County released just those individuals assigned the lowest amount of money bail, the county could have saved upwards of $20 million.

In addition to being unlawful, Metro Nashville’s secured money bail system is simply bad policy. Davidson County must end the practice of jailing people based solely on their poverty, and must implement constitutionally compliant post-arrest procedures.

Hedy Weinberg is executive director of the American Civil Liberties Union-Tennessee. Alec Karakatsanis is executive director of Civil Rights Corps.

This op-ed appeared in The Tennessean on July 14, 2017.