The Tennessee State Senate on Monday is scheduled to vote on a resolution that would amend the state constitution to expand the number of cases where judges are allowed to deny bail, as the Volunteer State currently mandates all defendants be issued bail unless they are accused of a capital crime.
In addition to capital murder cases, Senate Joint Resolution (SJR) 25 by Senate Majority Leader Jack Johnson (R-Franklin) would modify the Tennessee Constitution to empower judges to deny bail to defendants accused of second-degree murder, acts of terrorism, aggravated rape, aggravated rape of a child, grave torture, or any crime which would require a defendant to serve at least 85 percent of their sentence behind bars if convicted.
The proposed amendment would bring Tennessee’s judges closer to parity with those in at least 23 states which already give their judges such powers, either through their constitutions or through legislation, according to the nonprofit National Conference of State Legislatures (NCSL).
The nonprofit explains that states generally operate on the presumption that a person accused of crimes should be given bail, with all but three states making clear exemptions for defendants accused of murder, while an additional, “23 states have right-to-bail provisions that have been amended to expand preventive detention.”
It explains that many of these states have specifically allowed judges to deny bail for defendants accused of committing crimes including violent or sexual offenses, repeat offenses, or when the accused would present a danger to themselves or the community if released, or cannot be prevented from fleeing without detention.
An examination of individual states suggests the decision to empower judges to deny bail outside of capital crimes is not partisan, with governments ranging from California to Texas among those where lawmakers and voters have assigned more power to those charged with meting out justice than their counterparts in Tennessee.
In California, where Democrats have held a trifecta for 20 of the past 33 years, the state constitution mandates that defendants “shall be released on bail,” but offers exclusions for those accused of capital crimes, felony offenses “involving acts of violence on another person,” as well as felony sexual assaults, “when the facts are evident or the presumption great,” or when a court is convinced the defendant threatened another person and would make good on the threat if released.
Similar provisions are found in Texas, where the Republican Party wants to make unrelated changes to the Texas Constitution, and Republicans have held control over the legislature and governor’s mansion for more than two decades.
The Texas Constitution contains similar provisions which require bail to be offered to defendants with exceptions for capital offenses, and “when the proof is evident,” but the state also allows judges to deny bail to individuals previously convicted of multiple felonies for crimes that are violent or sexual in nature. Texas also allows its judges to deny bail for violating the terms of a release from prison or jail, or for violating a protective order involving family violence.
In Virginia, where Republicans made gains in 2021 after Democrats held control over key offices for nearly a decade, judges are also empowered to deny bail in more than just capital offenses through the Virginia Code.
Virginia allows judges to deny bail based on the weight of the evidence against the accused, whether a firearm was used in the alleged offense, the criminal history of the defendant, including their family, education, and employment circumstances, and the likelihood the accused will appear in court without being confined to a jail.
The Ohio Constitution similarly mandates bail to be offered except for in capital offenses or when the evidence of guilt is insurmountable, but also allows judges to deny bail when the defendant “poses a substantial risk of serious physical harm to any person or to the community.”
Ohio expands on the powers given to judges through its legal code, which expands their right to deny bail to defendants accused of first or second degree murder, and allows them to consider the history of accusations against the defendant, their previous use of drugs and alcohol, as well as their character, mental and physical health, and “[t]he nature and seriousness of the danger to any person or community that would be posed by the person’s release.”
In order for Tennessee to reach parity with these states, the resolution to amend Tennessee’s constitution must be passed by the General Assembly during two consecutive legislative sessions, with a two-thirds vote required for the second session, before going before the voters in a public referendum during a major election.
While last year’s resolution had no difficulty reaching this two-thirds majority, The Tennessee Star learned last week that some senators who expressed their support by voting affirmatively in 2024 have now changed their mind, possibly in response to lobbying pressure from the Tennessee bail bond industry.
Despite the reported opposition from lobbyists, the effort has the support of the Tennessee District Attorneys General Conference (TNDAGC), the conference created by the General Assembly to represent the state’s prosecutors.
TNDAGC Executive Director Stephen Crump previously endorsed the proposed amendment in an appearance in the General Assembly, telling lawmakers, “Tennessee’s district attorneys believe this is the singular most important bill to public safety that we have evaluated over the last 11 years.”
The conference reiterated its support in a Sunday post to social media, writing, “SJR25 is the singular most important criminal justice bill we have evaluated in over a decade.”
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Tom Pappert is the lead reporter for The Tennessee Star, and also reports for The Pennsylvania Daily Star and The Arizona Sun Times. Follow Tom on X/Twitter. Email tips to [email protected].
