In Tennessee, if you’re rich and dangerous, you can buy your way out of jail | Opinion

Tennessee should look into key changes including reducing the use of money bail and implementing pretrial risk assessments, which can help judges decide who can safely be released.

Right now, Tennessee has a rare opportunity to take a hard look at what works and what doesn’t when it comes to pretrial release.

As the former chairman of the House Judiciary Committee and a Republican, I worked closely with my colleagues in the Tennessee General Assembly to find better ways to keep our citizens safe. One thing that never made sense to me about Tennessee’s bail system was that if you’re rich and dangerous, you can pay your bail and go home the same day as long as you haven’t killed anyone.

However, the lack of bail money can and does cause many people to sit in a county jail for months, or in some cases years, while we pay the bill for those who are poor and committed minor infractions.

Simply put: If you’re scary, I don’t care how much money you have. We should keep you away until a judge can hear your case. If you happened to make a mistake in the wrong place at the wrong time, we need to get you out of the way to make room for the hardened criminals.

Now is the time for Tennessee legislators to make serious reforms

Tennessee’s system mirrors that which formerly existed in New Jersey, where one of my co-authors served as senior deputy chief counsel to Gov. Chris Christie in the mid-2010s.

Both states (New Jersey then and Tennessee now) rely heavily on money bail, creating a system where violent offenders can purchase their release before trial, while thousands of low-risk, non-violent individuals remain incarcerated for weeks, months, or even years simply because they cannot afford bail. This perpetuates a cycle of inequality with devastating consequences for individuals and families.

Recently, Tennessee’s Senate held a hearing to examine the current state of the bail industry and pretrial release in Tennessee – what’s working, and what’s not.

For Tennessee lawmakers, this is a critical moment to evaluate the state’s entire approach to pretrial detention and avoid further tragedies.

Most importantly, Tennessee needs to adopt policies that will prioritize risk over access to cash. In recent years, Tennessee has dramatically increased pretrial detention – up 129% since 2000.

But the bulk of these people are low-risk and low-income. Because of cash bail, potentially dangerous and violent individuals who are a threat to public safety can still purchase their freedom.

New Jersey model could help guide Tennessee policy on bail

Balancing public safety with individual liberty is always tricky, but the present system is a massive waste of resources, costing the public millions while putting pressure on overcrowded county jails, which are currently holding almost 26,000 people.

Moreover, unnecessary pretrial incarceration of low-level offenders can also lead to job loss, housing instability, and family disruption, increasing re-offense rates. In other words, it can actually make crime worse in the long run.

There is, however, a proven path forward, one that will allow Tennessee to detain violent offenders while letting low-risk individuals who still retain the presumption of innocence return to their families, jobs, and communities.

In New Jersey, we recognized that we were essentially operating a debtor’s prison, and we made it a priority to safely reduce the number of low-risk people incarcerated pretrial while ensuring violent and repeat offenders stayed locked up.

Specifically, we now deny bail to those who pose a threat to public safety – relying on risk, not money, to ensure public safety. As a result, in New Jersey the percentage of people who committed violent crimes while on pretrial release was reduced to just 1.2%.  At the same time, we saw a 20% decrease in the pretrial jail population, and now nearly all individuals appear for court.

Not only have our bail changes kept more people safe, they have also saved the state roughly $68 million dollars per year. My experience as a county prosecutor who navigated this system daily from 2017 to 2022 is that this approach works.

This commonsense New Jersey model has been adopted by other states and jurisdictions. Detroit, which Tennessee Sen. Brent Taylor, R-Memphis, recently stated transformed from a “failed American city” with high crime to a “vastly different” place, saw its lowest number of homicides in 57 years after implementing a risk-based system. Some jurisdictions in Tennessee have implemented similar pretrial system reforms. These examples can help inform discussions in the state around improving bail practices.

Key changes include reducing the use of money bail and implementing pretrial risk assessments, which can help judges decide who can safely be released, who needs additional conditions, and who should remain detained until trial. 

Additionally, the state can implement electronic text message reminder systems for court appearances, an intervention that has consistently proven to be a low-cost, effective method to improve appearance rates.

Giving sheriffs more authority to approve releases before the first court appearance – through delegated release authority – can also help. Specifically, deputies with first-hand knowledge of their communities can offer important perspectives on who is dangerous and should be detained, and who isn’t and could therefore be released.

Better bond options, like a partially-secured bond where the court, instead of a bondsman, takes a partial deposit, allows more court oversight, as seen in Nebraska and Kentucky, and is an initial step toward ending reliance on money for pretrial decisions.

And those posing the greatest risk can – and should – remain detained.

Tennessee must take this opportunity to create a better system. One that ensures justice is administered fairly, constitutional rights are protected, and communities remain safe. This is Tennessee’s moment to build a system that prioritizes safety over profit and justice over convenience.

About the co-authors:

Michael G. Curcio is the former representative from House District 69, former chairman of the House Judiciary Committee, and a father of three who continues his work to ensure that Tennessee is a safe place for everyone to live, work, and raise a family.

Scott A. Coffina is a former assistant United States attorney, county prosecutor for Burlington County, New Jersey, and senior deputy chief counsel to Gov. Chris Christie. He is currently co-chair of the Government Enforcement, Compliance, & White Collar Litigation practice group of Pietragallo Gordon Alfano Bosick & Raspanti, LLP, practicing in the firm’s Marlton, New Jersey office.