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The conservative approach to criminal justice:
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Pretrial Justice in Tennessee

| February 13, 2019

We are all familiar with the tenet that every defendant is innocent until proven guilty beyond a reasonable doubt. Americans may not be well versed in the myriad protocols related to the criminal justice system, but the presumption of innocence is common knowledge and deeply rooted in our American values. It is so fundamental that it seems too sacred for compromise. However, one needs to look no further than America’s pretrial detention population to realize that is not always the case. 

Tennessee offers a good snapshot of this nationwide issue. According to the jail summary report from the Tennessee Department of Corrections, an average of 49 percent of the state’s jail population, that is 15,852 total people, were detained in jail while awaiting trial. In other words, roughly 50 percent of Tennessee’s jail population consisted of folk presumed innocent. This population continues to grow, up 7.5 percent from 2017. The data does not indicate with what crimes those 15,852 pretrial detainees were charged. However, there is a constitutional right to bail in Tennessee for all crimes except capital murder, so we know most of these 15,852 were assessed bail but remained in jail due to an inability to pay the assessed amount. We cannot say for sure what percentage of these individuals were sufficiently low risk as to be safely released on nonmonetary conditions, i.e. release on recognizance, or at least electronic/GPS monitoring, etc. However, we do know that 17 percent of this pretrial population, that is 5,285 individuals, were detained on a misdemeanor charge. In fact, those detained on a misdemeanor charge increased 9 percent from the previous year’s total of 4,787.

These stats are concerning for a host of reasons. First, unless there is a substantial risk of flight or a threat to safety, our pretrial system should be less inclined to take away an individual’s personal liberty prior to an establishment of guilt. A variety of non-financial conditions such as GPS monitoring can help alleviate these types of concerns rather than detaining someone pretrial due to an inability to post bail. Further, there is very real human toll to detention and a risk to public safety in the future. In addition to removal from family and community, an individual might very well lose his/her job while they sit in jail awaiting trial. Even a small amount of time detained pretrial has been shown to increase the likelihood of subsequently reoffending. 

Then there is the cost to the taxpayer. It costs about $39 per day to house a person in jail. In 2018, the cost to house those detained on of a misdemeanor charge was $206,115 per day, and this population continues to increase. Couple this cost with the data that shows many of Tennessee’s jails are at or near capacity, if not over, threatens to trigger the added taxpayer cost of building new jails.

There is a bill pending before the legislature, Senate Bill 409/House Bill 1131, aimed at reducing the population detained on a misdemeanor charge. Under this bill, for those charged with a low-level, nonviolent offense that, if convicted, might later be expungable, a presumption in favor of release must be applied. There are a couple of important safeguards in place. First, if that defendant has previously been convicted of a crime that is not one of the low-level offenses identified as qualifying for expungement under Tennessee law, then that defendant will not benefit from the presumption. Further, the court will have the discretion to rebut the presumption if it finds sufficient risk of flight or re-offense were that defendant to be released on their own recognizance. 

Responsible policies that safely reduce the pretrial population, like Senate Bill 409/House Bill 1131, will boast significant cost savings as jails begin to house fewer low risk defendants. While important, there is also tremendous value in that these reforms reinforce the sanctity of liberty and the principle of innocence until proven guilty. 

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JULIE WARREN is a graduate of Marshall University and of Regent University School of Law. She also attended Georgetown Law Center as a visiting student. While in law school, she clerked on the Senate Judiciary Committee. Julie served four years at the U.S. Department of Justice in Washington, D.C. After a few years in private practice as a civil defense litigator, Julie returned to public service and began her work in the Office of the West Virginia Attorney General where she primarily served as an appellate advocate for the State of West Virginia and as legislative counsel to the Attorney General.

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