In many states, including here in Tennessee, an obstacle often stands in the way of equality and justice: cash bail. Cash bail is a practice that requires individuals charged with, but not yet convicted of, a crime to pay a predetermined amount of money to secure their release from jail while their case is pending.
Instead of being a tool to ensure court appearances, it has become a de facto punishment for those who have not been convicted of any crime but do not have the financial resources to post bail. Our current cash bail system undermines the rights to due process and equal justice guaranteed by the Fourteenth Amendment and the prohibition against excessive bail guaranteed by the Eighth Amendment of the Constitution.
Cash bail creates a two-tiered system of justice, favoring the privileged and punishing the impoverished. In Tennessee, countless individuals find themselves detained not because they are a threat to society but simply because they lack the financial means to secure their release.
For example, two individuals could be otherwise similarly situated. Yet, if one has money and the other doesn’t, the one with the money to post bail will be released, while the other will have to remain in jail – often for months or even years. Studies have shown that individuals who remain in custody while their cases are pending are more likely to plead guilty, usually to get a reduced charge, shorter sentence, or even immediate release.
Last year in Hamilton County, nearly 85 percent of people incarcerated in the local jail were there pretrial, meaning they had not yet been convicted of a crime. Of this 85 percent, nearly half were there for misdemeanor charges. Fundamentally, the cash bail system punishes poverty, not guilt, perpetuating an unjust system that undermines the fundamental principles of our legal system.
Cash bail reform is not just a matter of justice but also of public safety. Individuals who cannot post bond are more likely to plead guilty to a crime. In addition to legal consequences, criminal convictions carry collateral consequences, which limit or prohibit people with criminal records from accessing employment, education, housing, business and occupational licensing, voting, and other opportunities.
Gainful employment is one of the most effective ways of reducing recidivism. One of the primary reasons individuals turn to criminal activities is the lack of stable income and financial security. Gainful employment provides a legitimate source of income, offering individuals the means to meet their basic needs, support their families, and lead a more stable life. Gainful employment also helps integrate formerly incarcerated individuals into the community, allowing them to become contributing members of society. Community support reduces the likelihood of re-offending by providing a network of individuals who encourage responsible behavior. However, obtaining gainful employment often poses a challenge for those with criminal records. Many employers conduct background checks as a standard part of their hiring process.
A criminal record may become a red flag during these checks, leading employers to reconsider hiring an individual with a criminal history. Some employers may harbor preconceived notions or stereotypes about people with criminal histories, making it more difficult for individuals to secure job opportunities, regardless of their qualifications or rehabilitation efforts. Even if hired, individuals with criminal records may face challenges in career advancement.
Promotions or opportunities for professional growth may be limited due to the stigma associated with their criminal history. By reforming our cash bail system, fewer individuals will be coerced into pleading guilty, limiting the effects of collateral consequences and thus improving public safety by reducing recidivism.
Cash bail reform is not a radical idea but a rational response to an inherently flawed system. Numerous jurisdictions nationwide have recognized the need for change and have implemented successful reforms prioritizing justice over wealth. Alternatives such as risk assessments, community supervision, and non-financial conditions of release have proven effective in ensuring court appearances without perpetuating the cycle of poverty. Opponents of cash bail reform argue that our current cash bail system is necessary to ensure public safety and reduce the risk of defendants not attending court. However, these contentions are not supported by the facts, as numerous studies have shown that cash bail reform does not jeopardize public safety or increase flight risk.
It is time for Tennessee to embrace cash bail reform. By doing so, the state will promote a more equitable and just criminal legal system while improving public safety by reducing recidivism. The time has come to unlock the doors of opportunity and fairness for every Tennessean, regardless of their financial status, and to build a criminal legal system that truly reflects our values.
Tyler Foster is a formerly incarcerated individual who is passionate about creating a more equal and just criminal legal system. He serves on the Board of Directors for Chattanoogans in Action for Love, Equality, and Benevolence, a nonprofit, nonpartisan organization focused on several issues, including criminal legal reform. He graduated summa cum laude from the University of Memphis in May 2023 and will be attending law school next fall.
* * *
Having just seen the letter from Tyler Foster, I immediately became ill. I do not know Tyler Foster or his background or seemingly far-left wing radical group.
We have all seen the large increase in crime that occurs wherever his so-called cash bail reform has been made. Rob a store. Out without bail to rob again the same day. That is what Foster wants. Assault a police officer, out before the officer is out of the hospital. That has occurred many times in cities with no cash bail.
But this is just a small part of what use to be a justice system, but is now a legal (or lawyers profit) system. Let’s talk some real reforms that will actually reduce crime instead of this “let them all go free” pushed by the extreme far-left woke crowd.
A few specific ideas:
· Cars used in high speed (over 20 over speed limit?) should be confiscated if owed by the driver, or someone that has given the driver permission to use the vehicle. If stolen of course, it should be returned to the owner and No plea bargain should be allowed to dismiss the car thief charges without the agreement of the owner and if there are ANY assets owned by the criminal, those are to be confiscated and sold up to the amount to pay for any vehicle damages and related expense of the owner. If the criminal was the owner or had permission to use, then all money from sale of the vehicle should go into a crime victims fund.
· Repeat DUI offenders should also lose ownership of any vehicle they drove under the influence, after having been previously convicted of DUI twice before. The vehicle should be auctioned and funds should go into a crime victims fund.
· If convicted of a new crime (some limits on types of crime would be appropriate) while out on bail for another crime they are convicted of, then the criminal should not be ineligible for any bail for a period of time, such as 20 years. Even before “no cash bail” many judges gave bail time after time to repeat offenders, who continued to commit crimes while on bail.
· If a criminal is convicted of a new crime while on parole or a previous conviction, the criminal should lose possibility of parole for at least 20 years. How many times should parole be granted to allow more crime?
· Parole boards should have to report statistics for each member on crimes committed while on parole by the criminals that members voted to give parole. The same should be required for judges giving bail. The public should be allowed to know what they are doing, especially for any that are elected.
· Any kind of intentional murder (whatever the various state and federal laws call it) should have a minimum sentence of 20 years.
· Acting in an organized mob/gang/riot store robbery, whether organized in person or through any online social media, should be charged and treated as RICO actions, instead of simple robberies, if even caught and prosecuted.
· The death penalty should be reformed. It should not be given based on single crimes. We all have to admit that innocent people have been convicted and later released from death row. That fact alone is giving anti-death penalties the biggest argument against the death penalty. BUT, repeat violent offenders with multiple crimes separated by sentences should be executed on the third occurrence. That should include crimes using a gun or knife or intention use of any other weapon (ball bat, etc.), whether or not someone is killed or injured by the weapon. That should also include if a vehicle is used to injure or kill someone.
· Career non-violent criminals, after 3 convictions separated by sentences, should have escalating sentences with each increased regardless of the specific crime, shoplifting, burglary, etc. After a number of convictions (maybe 5-10?) the specific crime sentence guidelines should be replaced by a minimum 10 years. If the crimes continue after release, each crime must have a minimum 10-20 years.
· Juvenile records should be given and used for sentencing consideration if convicted as an adult. And if juvenile offenses are of the same type or nature as adult charges, they should be made available during the trial of the adult crimes. Does an armed carjacker magically commit their first carjack after 18? I doubt it.
· Stop spending tax dollars on voluntary cosmetic surgeries and medications. Going to prison should not be a way to get sex change medications and surgery or free. I have known and worked with many gay, lesbian, bi-sexual and non-sexual persons and they have every right and respect as anyone else. I have also known and worked with a few who would now be called “trans-gender, but were then called cross dressers more commonly. At least one had surgery to go male-female presentation (None of my business but “she” was a work friend who was open and told others.) They all were good people who had their own reasons and desires and should have the same rights and respect as anyone else. This was in early 1980’s. This is not new. But they do not claim that changes their biological sex. But the new political policies claim that by a mental decision, someone’s biological sex can be changed magically, against ALL actual science. Biological men should not be allowed access to assault biological women, just because they CLAIM to have magically changed sex and be moved to women’s prisons or jails.
Of course many people will say I am an a-hole or MAGA right wing and cruel. I am now at the age where I don’t need to be quiet to keep a job or anything else. And say it like I see it. You may disagree with me and I respect that. Too bad the left-wing radicals don’t respect others opinions and try to force theirs on all others. By the way I did not vote for Trump in 2016, but did in 2020 for the policies. After seeing the corruption that the federal administrative state used to rig the 2020 election, not by the count of the votes, but because of the lies, cover-ups and government/media conspiracy, and remembering the corruption before the 2016 election (the Russian collusion lie based on the Hillary Clinton and Democratic Nation Committee brought Steele Dossier) that anyone that cared enough to learn anything about, knew it was false, and now has had FBI and CIA internal documents exposed showing they knew it was false, but covered it up, and promoted it After all Washington, D.C. is over 92 percent Democrat and actually fed employees are higher.
That does bring one other suggestion: Do away with the Federal D.C. court having control of cases about the federal government. Why does a highly partisan area get all control where a jury is always tilled against any conservative or other non-Democrat. Those cases should be distributed to all parts of the country or at least have the jury pool pulled from all circuits, instead of just DC.
* * *
Here's a novel idea...Don't break the law and this won't be an issue. The old adage, "if you can't do the time, don't do the crime" comes to mind.
Public safety has been and will continue to be "endangered" by individuals who are repeat offenders as a result of the cash bail system. I say "individuals" to prevent this from being a race issue. I mean all individuals, not just black, white, Hispanic or purple. All.
* * *
First, Jim most of the crimes you mentioned are not the crimes this gentleman is referring to anyway. Wayne, what about the 19 percent of people arrested but not convicted? Also, an estimated 10 percent are innocent.
The following states have either eliminated cash bail or removed it for nonviolent misdemeanors with no increase in crime: New Jersey, Alaska, New York, Illinois, Kentucky, Nebraska and Indiana.
I understand your position that the cash bail system serves as a deterrent against crime and promotes public safety by keeping potentially dangerous individuals off the streets while awaiting trial. However, I believe there are several counterarguments to consider.
First, the presumption of innocence is a fundamental principle of our justice system. Cash bail effectively punishes individuals before they have been convicted of any crime, disproportionately impacting those who cannot afford to pay the bail amount. This can lead to job loss, housing instability, and even family separation, further exacerbating existing social and economic disparities.
Second, research has shown that cash bail does not effectively reduce recidivism rates. In fact, studies have found that pretrial detention can actually increase the likelihood of rearrest. This is because jail time can disrupt employment, education, and treatment programs, making it more difficult for individuals to reintegrate into society upon release.
Moreover, the cash bail system creates a two-tiered system of justice, where those with financial means can afford their freedom while those without remain incarcerated. This undermines the equal protection clause of the Fourteenth Amendment and perpetuates cycles of poverty and incarceration.
In light of these concerns, I believe there are more effective and equitable ways to ensure public safety while upholding the presumption of innocence. These include:
Risk assessment tools: These tools can help judges make more informed decisions about bail by evaluating factors such as an individual's criminal history, ties to the community, and likelihood of appearing in court.
Pretrial supervision programs: These programs provide support and monitoring for individuals awaiting trial, reducing the need for cash bail. They may include services such as regular check-ins, employment assistance, and mental health counseling.
Reforms to the bail schedule: Bail schedules often set bail amounts that are too high for many defendants to afford. Reforms could include lowering bail amounts for low-risk offenses and providing flexible payment options.
By implementing these reforms, we can create a more just and effective bail system that protects public safety without unfairly punishing those who are presumed innocent.
* * *
Anyone considering reforming the cash bail system should first consider it is impossible to tell who can afford to pay bail and who can't.
As everyone knows, it's impossible for a court to determine how much money an individual can access or raise. People who appear poor that live on a cash basis may have tens of thousands of dollars in cash. How would anyone know?
People who appear well off may have a negative net worth. Again, how would anyone know for sure? If they have a negative net worth do they qualify for consideration for a break on their bail even though they're wearing a Rolex watch, driving a nice car and dressed to the nines?
There's no set way to actually determine with accuracy anyone's net worth. You could at most only determine their documented income or lack of but that would by no means be conclusive. What are you going to do, go by how rich or poor they appear? You going to look at their tax records? Are you going to go look under their mattress and in their closets?
Anyone imagining they can accurately determine a person's ability or inability to pay is fooling themselves.