Davidson County, TN’s cash bail system under scrutiny

The American Civil Liberties Union of Tennessee and the Civil Rights Corpsare calling for an end to cash bail in Davidson County, a practice that keeps thousands of people locked up every year because they are poor.

Hedy Weinberg, executive director of the ACLU of Tennessee, and Alec Karakatsanis, executive director of Civil Rights Corps, wrote in an op-ed that bail practices in Davidson County, which is Tennessee’s second-most populous county and has Nashville as its county seat, need reform and that the present practice is likely unconstitutional.

“In 2016, the average amount of secured money bail imposed on people charged with misdemeanors in Davidson County was more than $5,000,” the column said. “Thousands of people are jailed in Davidson County simply because they cannot pay the amount of money demanded in exchange for their liberty.”

In Davidson County, 60 percent of people arrested remain in jail for the entirety of their case, compared with only three percent in New York City and 1.5 percent in Washington, D.C.

Weinberg and Karakatsanis argue that this practice of detaining people who have not been convicted of a crime violates the Due Process and Equal Protection clauses of the 14th Amendment to the United States Constitution and will likely be struck down by a court at some point in the future if reform doesn’t occur.

As Weinberg and Karakatsanis explain: “By making pretrial freedom dependent on access to cash, Davidson County’s secured money bail system creates a two-tiered system of justice, incarcerating the most impoverished while wealthier arrestees are freed. Those who can post the demanded amount of money are able to walk out the doors of the Metro jail and return to their jobs, families and homes. The rest are left to languish in jail, which is devastating for arrestees, their families and their communities.”

Justice reformers have increasingly focused on ending cash bail practices around the country. New Jersey, Washington, D.C., and Chicago have largely, if not entirely, abandoned the practice. In Philadelphia, longtime civil rights and criminal defense attorney Larry Krasner, the Democratic nominee for district attorney, has made ending cash bail a key part of his campaign platform.

In Davidson County, any successful bail reform will likely require the support of District Attorney Glenn Funk, who has indicated support for efforts to keep more people out of jail, but seems dubious about ending cash bail. Last year Funk told the Nashville Scene that while he wants “to make sure no one is incarcerated because they are poor,” he’s not yet in favor of eliminating cash bail in the absence of a method to ensure defendants appear for their court dates.

Reform advocates argue, and studies show, however, that cash bail amounts imposed “have no relation either to the amount necessary to ensure appearance or the individual defendant’s ability to pay,” and instead unfairly punishes the poor.

“Cash bail does not do what it claims to do,” Ezra Ritchin of the Bronx Freedom Fund says. “It’s supposed to only address failure to appear, but it doesn’t. What starts as a misdemeanor arrest turns into life destabilization in every way.”

A fund to help people make bail started up in Nashville. Similar bail funds exist in the Bronx, Brooklyn, Chicago and Seattle, reports the Nashville Scene. “And most of their clients don’t skip out on bail,” says Ritchin. In fact, 96 percent of the more than 400 people they’ve bailed out have made all of their court dates.”

Davidson County should consider the op-ed by Weinberg and Karakatsanis to be a clear shot across the bow. The Civil Rights Corp has a string of successful litigation efforts across the county seeking to end the practice of cash bail, most recently in Harris County, Texas.