A dangerous defendant should not be able to buy his way out of jail. Nor should someone who can safely await trial at home remain behind bars because they cannot afford bail.
On Nov. 3, Tennessee voters can address the first scenario by passing aconstitutional amendment that expands judges' authority to deny bail in serious cases. But if detention is to reflect public safety risks rather than financial resources, policymakers must address the second as well.
Amendment 1 would shift bail decisions toward public safety
Tennessee's constitutionguarantees bail except in capital cases. For other charges, judges may face a choice when they believe a defendant poses a serious danger: set a high monetary bond or release the person under conditions they consider inadequate. That is detention by price tag, and even
the most dangerous defendant with cash can buy his way out.
Amendment 1 would change this by letting judges deny bail in additional cases, including second-degree murder and aggravated rape. It would also extend to dozens of other offenses carrying sentences that require a convicted person to serve at least 85% of the sentence before release.
One can quibble with offenses included on the 85% list, such as some forms of drug dealing. Still, the measure addresses a real gap and moves part of the system away from being based on wealth to being based on risk.
Would Amendment 1 fill Tennessee jails?
Will it fill jails, as critics warn? Texas voters approved a similarconstitutional amendment in 2025.Harris County's official data dashboards suggest that the jail population impact has been negligible. Additional bail denials have largely involved a few dozen murder cases.
To prevent excessive bail denials, the state must fulfill its constitutional obligations to provide effective counsel with sufficient time to prepare for the bail hearing. Indigent defense resources are also important given that, unlike a Tennessee defendant who cannot afford bail, one who is denied bail is entitled to an expedited appeal.
Money bail can keep low-risk defendants behind bars
However, the main driver of jail admissions is not the small number of people charged with offenses subject to the 85% requirement, but the larger flow of low-level defendants, and recent laws have made their release harder. In 2024, lawmakersprohibited judges from considering a defendant's ability to pay when setting bail. In 2025,they required bondsmen to charge a 10% premium, ending discounts on small bonds.
A low-risk person arrested for marijuana possession, or for missing court over unpaid fines, can now sit in jail for weeks over a few hundred dollars, while a defendant with greater resources walks out.
Research suggests unnecessary detention can also carry public safety costs. AKentucky study found lower-risk defendants held for two or three days were 39% more likely to be arrested before trial than comparable defendants released within 24 hours. This is likely due to the disruption in employment and family life.
Pair Amendment 1 with broader pretrial reform
In addition to investing in indigent defense, lawmakers should take two other steps.
First, restore judges' ability to consider whether defendants can afford monetary bail. For lower-risk defendants, courts should be able to use release on recognizance, unsecured bonds and nonfinancial conditions.
Second, expandeffective pretrial services.
Many Tennessee counties have no pretrial services available, leaving judges to choose among release on recognizance, a money bond, or, for qualifying offenses if Amendment 1 passes, detention. Judges need reliable alternatives for supervising people, including regular check-ins, court-date reminders, treatment and monitoring.
The same logic behind the ballot measure, that pretrial decisions should be based on risk, not riches, must also lead Tennessee to ensure defendants who don't endanger the rest of us aren't kept in jail because of the size of their wallet.
Marc Levin is chief policy counsel at the Council on Criminal Justice (www.counciloncj.org). Khalil Cumberbatch is director of strategic partnerships at the Council.
This article originally appeared on Nashville Tennessean: TN Amendment 1 is only the first step toward bail reform | Opinion
