Several groups called Shelby County’s money bail system unconstitutional in a letter issued Tuesday and urged leaders to meet with them about the practice or face a lawsuit by year’s end.
The letter is from the American Civil Liberties Union (ACLU), the American Civil Liberties Union of Tennessee (ACLUT-TN), Just City, and The Wharton Law Firm. It paints a picture of a broken system that favors those with money to get out of jail and disproportionately affects poor, Black, and disabled detainees.
“Jailing people simply due to their inability to afford a sum of money is unconstitutional and harmful public policy,” said Andrea Woods, staff attorney with the ACLU’s Criminal Law Reform Project. “Shelby County officials should embrace this opportunity to remedy the county’s discriminatory, wealth-based detention practices. We would rather see smart systems fixes now than be forced to bring these issues to court.”
The letter says pre-trial release is a fundamental right under the state and federal constitutions. Tennessee law requires judges to treat money bail as a “last resort,” it says. Except for “extreme circumstances,” all criminal suspects have the right to some sort of conditional release from jail before their trials.
Shelby County’s system, however, keeps “hundreds of people” detained because they cannot afford bail. This can lead to loss of employment, housing, education, health care, and child custody, the groups said.
The county’s current pre-trial system can hold a person for “weeks or longer” without a bail hearing with counsel, according to the groups. Ability to pay is not considered when bail is set, “leaving those who cannot afford to pay detained indefinitely, even if they are not a flight or safety risk, while those who face the same charges but can afford to pay money bail are freed until trial.”
“Because of this community’s dependence on money bail, the Shelby County Jail is full of people who cannot pay for their freedom,” Josh Spickler, executive director of Just City, said in a statement. “There are proven alternatives to this counterproductive system, tools and policies that have worked in other cities just like Memphis to reduce crime, save money, and help people.
“These methods work, but they require leadership. Today, we are inviting Shelby County leaders to join us for a long-overdue conversation about safe and effective alternatives to the money bail system. We hope they’ll join us.”
The letter threatens litigation and demands reform for the county’s bail system. It says the groups “prefer to work with you to resolve our concerns but stand ready to explore other options” if the county does take action.
That action — an answer to a meeting request from the groups — needs to take place before December 31st. If not, “we have no choice” but to file a lawsuit.
“We cannot and will not sit idly by and let this easily corrected problem persist,” reads the letter.
Instead of the current system, which the letter says “does not promote court appearance,” the groups want (among other things):
• bail hearings no later than 24 hours after a person’s arrest
• no money bail set unless proof exists that the person will not return for trial without it
• a consideration of ability to pay for bail before it is set
• affordability for bail means the person can pay the bail amount within 24 hours without borrowing money
