When a criminal defendant walks into a courtroom in the United States, a judge makes two decisions: First, she determines whether there is probable cause to believe the defendant committed the offense, and she will also decide whether the defendant is likely to flee justice or revictimize his community.
In most of the country and in the federal system, judges who answer these questions in the affirmative are allowed to mitigate the risks of flight or harm by requiring high-risk defendants to await trial behind bars. But not in Tennessee.
On Nov. 3, Tennesseans will have the opportunity to change that by voting “yes” on Amendment 1. A “yes” vote will give judges throughout the state the authority to shield communities from dangerous pretrial defendants
who’ve demonstrated their commitment to persistent criminality.
Tennessee’s bail rules give judges less discretion than New York
I have spent many years covering the issue ofbail reform, and I’ve been critical of many efforts in states likeNew York andIllinois to reorient the pretrial release inquiry primarily around the interests of criminal defendants.
If you had to rank the most defendant-friendly states on the issue of pretrial release, my home state of New York would almost certainly top the list, as the Empire State categoricallyprohibits judges from considering the dangers posed by criminal defendants in every aspect of the pretrial release inquiry. However, New York judges do have the authority to jail pretrial defendants charged with qualifying offenses who pose a sufficiently high risk of flight.
But if there is another state that can give New York a run for its money on this issue, it is, perhaps surprisingly, the great state of Tennessee, which denies judges the authority to remand criminal defendants (even the most dangerous ones) to pretrial detention in 99.9% of the cases cleared throughout the state, according to the Tennessee Bureau of Investigation's 2024 Crime in Tennessee report.
A Memphis murder case shows what’s at stake
Recall therecent case of Rashod Manuel in Memphis. Just this summer, Rashod was charged with the murder of Lorenzo Manuel in a multi-victim shooting incident. That fatal shooting occurred while Rashod was out on bond for a double-shooting and murder he was charged with committing in February 2024 – a shooting in which Lorenzo Manuel was wounded.
Rashod wasn’t back on the streets of Memphis because judges determined that he wasn’t dangerous. He was free because the state constitution takes pretrial detention off the table in cases like his.
Opponents of Amendment 1 can’t have it both ways
Opponents of Amendment 1, many of whom are part of the bail bondsindustry and see the reform as a threat to their businesses, almost never defend these outcomes. Instead, they deflect and offer up sometimes-contradictory arguments in opposition to what should be widely regarded as a common-sense public safety measure.
For example, the criminal defense advocacy group Just Citysays that Amendment 1 is unnecessary because it “doesn’t significantly change the discretion judges already have,” noting that “Judges already hold people before trial.”
But the organization’s executive director recentlytold the Nashville Banner that the measure would “probably result in incarceration rates continuing to go up.”
Well, which is it? If judges are already able to send dangerous defendants to jail, why would the amendment lead to a rise in pretrial detention?
The truth is that Amendment 1 fills an important gap in the system.
Critics count jail costs, but what about the cost of crime?
Another popular critiqueargues, usually without presenting any hard numbers or even back-of-the-envelope estimates, that Amendment 1 will lead to a large spike in correctional costs.
But those arguments never contend with thewell-documented social costs of the crimes committed by those who could have been, but weren’t, detained at the time.
Opening the door to more pretrial detention may well mean spending a little more on county corrections, but how do those who express concern about additional expense think about the costs of the avoidable rapes, homicides or home invasions committed by high-risk defendants out on bond? They don’t say.
Amendment 1 would give Tennessee judges another option
Right now, in the Volunteer State, a defendant with a prior open case and a lengthy and violent criminal history who comes before a criminal court on a new charge must be given the opportunity to buy his way back onto the street.
The best his victims can hope for is that he is unable to come up with the money to post bond. But when all the system can offer the victims of recalcitrant offenders is hope, it is time for change.
Rafael A. Mangual is a senior fellow with the Manhattan Institute for Policy Research’s Policing & Public Safety Initiative.
This article originally appeared on Nashville Tennessean: Tenn. Amendment 1 would give judges more power to deny bail | Opinion
