One core responsibility of our government is to protect the safety of citizens. It is a responsibility we must fulfill while honoring the constitutional liberties that have defined our state since its founding.
On Nov. 3, Tennesseans will have an opportunity to strengthen that balance by considering Amendment 1, a constitutional amendment I sponsored alongside House Speaker Cameron Sexton to give judges greater discretion when determining whether individuals accused of serious crimes should be released before trial.
Under the current Tennessee Constitution, defendants have a right to bail in virtually every criminal case, regardless of the seriousness of the charges or the danger they may
pose to the community. The sole exception is for capital offenses, crimes punishable by death.
That limitation creates a troubling situation. A judge may have compelling reasons to believe that someone accused of second-degree murder, aggravated rape or another serious violent crime poses a danger to others, yet still be constitutionally required to offer bail.
How Tennessee's bail system got here
To understand how we arrived here, it is worth considering the understanding of those who adoptedTennessee's original Constitution in 1796.
Our founders recognized that the right to bail was fundamental, but not absolute. They expressly provided an exception for capital offenses when the evidence was sufficiently strong. At the time, the category of crimes punishable by death was considerably broader than it is today.
In fact, a Tennessee law enacted just three years after the Constitution was adopted made horse stealing a capital offense, a fact later documented by theTennessee Supreme Court in 1815.
That historical example illustrates an important point. The framers established an exception that operated within a criminal justice system in which capital punishment applied to a much broader range of offenses.
Over the ensuing two centuries, our criminal laws evolved, and capital punishment became reserved for a much narrower category of crimes. Yet the constitutional language governing bail remained substantially unchanged.
As a result, the practical scope of the original exception has diminished considerably.
What Amendment 1 would do
Amendment 1 seeks to restore that balance.
It would authorize judges to deny bail for specifically identified serious offenses, including second-degree murder, terrorism, aggravated rape, grave torture and offenses carrying statutory requirements that at least 85% of a sentence be served before release.
Importantly, this amendment does not mandate detention. It gives judges discretion to make decisions based on the circumstances before them. The constitutional requirement that the proof be evident or the presumption great remains intact, and judges must place their reasons for granting or denying bail on the record.
This principle is hardly without precedent. InUnited States v. Salerno, the United States Supreme Court upheld carefully limited pretrial detention as consistent with the Constitution, recognizing the government's compelling interest in protecting the public.
Protecting rights while protecting communities
There is also a question of fundamental fairness. Our justice system should not allow dangerous defendants to secure their freedom simply because they have sufficient financial resources, while defendants accused of lesser offenses may remain incarcerated because they cannot afford bail.
As a conservative, I believe deeply in limited government, individual liberty and the rule of law. I also believe that the government has a solemn obligation to protect innocent lives.
Two consecutive General Assemblies, including a constitutionally required two-thirds majority in the second, approved submitting this amendment to Tennessee voters.
Amendment 1 honors the principles established by our founders while recognizing the realities of modern criminal justice.
We can respect the rights of the accused while providing judges the authority necessary to protect victims, families and communities.
On Nov. 3, I encourage Tennesseans to vote Yes on Amendment 1.
Sen. Jack Johnson represents Tennessee's 27th Senate District, which includes Williamson County, and serves as Senate majority leader.
This article originally appeared on Nashville Tennessean: Why Tennessee voters should approve Amendment 1 | Opinion
