County Mayor Claude Ramsey said an alternative bond program "has not been as successful as we had hoped it would be" and it might be shelved.
But he asked General Sessions Court judges to work with his staff in trying to see if parts of the program can be salvaged "at a very low cost."
Meanwhile, The Ninth Circuit United States Court of Appeals has ruled that "required drug testing as a condition to early pre-trial release" from jail is unconstitutional.
General Sessions Court Judge Bob Moon said, "I have never participated in the Alternative Bond Program; it has failed miserably too many times, and all agree that it has not performed even closely to what was expected. I suspect this decision will cast great scrutiny upon the utilization of the program."
Several of the judges have declined to use the program that is aimed at cutting jail costs and overcrowding by identifying certain offenders for a supervised release.
Judge Moon said many offenders avoid jail and those in the facility "are not a real good gene pool to work with."
Judge Clarence Shattuck said the program "hasn't worked the way I envisioned it would."
He said some of those being considered for the program "go ahead and settle their cases."
Officials said a similar program is working well in Nashville.
The program was a recommendation of consultants studying jail overcrowding and the local criminal justice system.
On the federal appeals court ruling, Judge Moon said, "This opinion does not prohibit required drug screening in all pre-trial release programs. However, the court does set forth the constitutional criteria necessary to avoid the 'wholesale' utilization of alternative bond programs."
The appeals court stated that the issue of drug testing and searching pre-trial detainees "is an issue of first impression (meaning it has never been decided in any federal circuit court before.)"
Raymond Lee Scott was arrested in Nevada on state charges of drug possession and released on his own recognizance pursuant to an alternative bond program. In order to quality for release, Scott was required to sign a form stating that he agreed to comply with certain conditions. Among the conditions was consent to "random drug testing."
Pre-trial detainees released pursuant to Hamilton County's Alternative Bond Program are required to sign a similar form.
The appeals court also noted that the State of Indiana had previously struck down a pretrial release condition imposing random drug screen as unreasonable.
In the Scott case, the government relied upon Scott's consent to random drug screens to validate the pretrial condition for early release pending trial. The court stated, "Many pre-trial detainees willingly consent to such conditions, preferring to give up some rights in order to sleep in their own beds while awaiting trial."
In striking down the "unconstitutional condition to pretrial release," the court made a distinction between pretrial detainees who are presumed innocent and probationers who have been convicted and lose their presumption of innocence. The court stated, "People released pending trial, by contrast, have suffered no judicial abridgement of their constitutional rights. Because the government failed to demonstrate that Nevada had special needs for obtaining the drug-testing release condition, it cannot justify the search - testing Scott for drugs without probable cause - using this approach."
The court concluded, "Nevada's decision to test Scott for drugs without probable cause does not pass constitutional muster under any of the three approaches, consent, special needs, or totality of the circumstances. The 'unconstitutional conditions' doctrine limits the government's ability to exact waivers of rights as a condition of benefits."
Several recent United States Supreme Court rulings were cited as precedent and as a legal basis in the court's opinion.
Judge Moon said, "The case appears to hold succinctly that pre-trial release on a recognizance bond conditioned upon random drug testing must be justified by a showing that a defendant 'poses a heightened risk of misbehaving while on bail.' The alternative bond program subject to judicial scrutiny in this particular case merely assumed this and attempted to short circuit the process by claiming that the arrest itself was sufficient to impose random drug testing. The Scott decision is a very important decision that will have to be read and studied by those interested in continued utilization of the county's Alternative Bond Program."