opinion

Nashville Community Bail Fund lawsuit shows shortcomings of Tennessee's system | Opinion

The Nashville Community Bail Funds' lawsuit over bail practices in Davidson County shines a light on long-standing shortcomings of Tennessee's commercial bail bond system.

Not only does this system promote unnecessary incarceration; it also costs the State and local governments hundreds of thousands of dollars every year. Fixing this system will save money and result in fairer, more equitable, bail policies.

Persons accused of crime have a constitutional right to be released on bail pending trial because they are presumed innocent. The primary purpose of bail is to create a financial incentive for the accused to return to court for the trial of his or her case. If the accused does not appear, the bail is forfeited as a penalty. In some cases, courts set bail very high to prevent dangerous persons from being released.

Current law permits courts to release accused persons without bail, but this does not happen often. Many persons accused of crime cannot afford to post bail and are forced to scrape up enough money to purchase a bail bond from a commercial bail bondsman.

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This is a very, very profitable business

While the bondsmen line their pockets, the costs to the taxpayers mount up because many of the persons who have exhausted their own funds to purchase a bail bond are then provided a lawyer paid for by the taxpayers.

Persons who cannot afford to post bail or to purchase a bail bond must remain in jail waiting for trial. This wait can last many months.

In 2013, the National Judicial College reported that unnecessary pretrial detention is detrimental to the accused, costly to the detaining authority, and counterproductive with regard to its impact on future criminal behavior.

In 1996, following two and a half years of public meetings, a 34-member Commission on the Future of the Tennessee Judicial System characterized Tennessee's heavy reliance on commercial bail bonds as “the judicial system's tawdry embarrassment” and recommended that “the judicial system would be better served by its own bail bonding system.”

Little has changed since 1996

The commercial bail bond industry has stifled all reform efforts.

In 2017, following 18 months of hearings throughout Tennessee, the Indigent Representation Task Force reported that there was substantial agreement among prosecutors, public defenders, private defense lawyers, and law enforcement that Tennessee's current reliance on commercial bail bondsmen should be revisited.

The task force recommended consideration of reforms enacted in Kentucky, Maryland, and other jurisdictions.

No action has been taken

Financially stressed persons continue to pay for commercial bail bonds, and commercial bail bondsmen continue to profit. Taxpayers continue to foot the bill for public defenders or appointed lawyers for persons who would otherwise have been to pay for their own legal representation.

Taxpayers continue to foot the bill for housing persons who cannot afford a pretrial bond and for those who eventually plead guilty (whether they are guilty or not) and accept longer sentences than they would otherwise have received simply to get out of jail.

How long will Tennessee’s taxpayers be forced to wait before Tennessee reforms the current commercial bail bond system in a way that saves money and restores fairness and equality to pretrial release?

William C. Koch, Jr., is president and dean of the Nashville School of Law and was counsel to Governor Lamar Alexander in 1984.