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To Protect Public Safety, Pretrial Release Must Turn on Risk

The American pretrial system is flawed. A defendant accused of murder, or another form of violence, may be released from jail, while someone charged in the same courtroom with simple possession might remain in jail for weeks or months. This is because pretrial release mostly boils down to the defendant’s ability to pay. If logic dictates that the criminal justice process exists to protect public safety, then reliance upon bail as it currently exists defies logic.

Victims of crime too often absorb the shortcomings of a system that relies on bail as a security function. Last month, Seattle Seahawks linebacker, Chad Wheeler, was released by a Seattle area court on a $400,000 bond. Wheeler’s bail was set in response to charges of first-degree domestic violence assault and unlawful imprisonment against his former girlfriend, who called 911 from a locked bathroom claiming “she was being killed.” The police report indicates that Wheeler choked his victim until he rendered her unconscious. She also sustained a concussion and arm fractures that required the placement of a permanent metal plate. As these incidents of domestic violence scenarios play out across the country, I struggle to comprehend how that $400,000 will protect the public, particularly Mr. Wheeler’s former girlfriend.

Bail also has failed to secure the safety of Tennesseans. In 2018, Austin Watson, a professional hockey player with the Nashville Predators, was released by a Williamson County magistrate on a $4,500 bond for a domestic violence charge to which he would later plead no contest. A few months ago, in Warren County, Tennessee, a man who confessed to murder was later released on a $30,000 bond. How does this protect the victims of these crimes?

The release of high-risk defendants on the condition of payment has manifest into real consequences.  Last year, two men were arrested in Clarksville, Tennessee on allegations they used an online dating site to meet and assault multiple victims, and one of the defendants was out on bond for a similar charge pending in Jackson. In Rogersville, a man was charged with trying to run over police officers with his vehicle just months after he was released on bond for crimes that included felony evading arrest, felony reckless endangerment, and aggravated assault. In Le Vergne, Tennessee, a man out on bond for murder led police on a high-speed chase that resulted in crashing his vehicle into innocent motorists.

Prioritizing the ability to pay over the risk to public safety is enough to warrant immediate reform, but the conversation does not end with this argument. We must also consider those who are not released pending trial because they could not afford bail. In 2020, these folks constituted 54 percent of Tennessee’s total jail population, up from 51.4 percent in 2017. There are certainly those within this pretrial population who pose a risk to public safety rendering detention necessary. However, many are low-risk defendants who remain in jail simply because they lacked to resources necessary to secure their freedom. In 2020, more than 15 percent of Tennessee’s total jail population remained in jail on a misdemeanor charge because they could not afford to pay bail. There is a human toll to detaining a low-risk defendant simply for want of resources. These individuals might lose their jobs, possibly their homes, which invariably affects their families as well as the entire community.

Then there is the financial cost to relying solely on bail to determine release that taxpayers bear. It costs approximately $35 per day to house a person in jail. Tennessee’s pretrial population averaged 12,885 in 2020. Therefore, local taxpayers assumed a cost of approximately $450,975 per day to house this population with no reimbursement from the state for those charged with felonies. To add insult to injury, some local taxpayers may be forced to absorb the additional costs of building larger jail facilities. A recent Pew study found that 47 percent of Tennessee’s total expenditures on corrections were spent at the local and county level on jails.

A few jurisdictions in Tennessee, including Hamilton, Knox, and Shelby Counties, have recently developed a validated pretrial risk assessment tool in order to refocus release decisions based on risk. The pretrial risk assessment tool objectively calculates risk factors such as age, criminal record, any previous failures to appear for hearings, employment status, substance use, and age of first offense. Points are assigned to each factor, resulting in a total score that assesses a range of risk from low to high. These tools are designed to inform, not dictate, a court’s decision regarding pretrial release and any conditions of release that might be necessary. Risk assessment instruments should be regularly validated, meaning they are retrospectively tested to demonstrate that each factor and the total risk score are highly correlated with recidivism, failure to appear, or both.

A statewide poll indicates that 70 percent of Tennesseans believe the state’s pretrial system needs fixed. Last week, Governor Lee introduced his criminal justice agenda for legislative consideration that includes an effort to refocus pretrial release on risk by expanding the use of the pretrial risk assessment tool statewide. Tennessee Senate Pro Temp Ferrell Haile has echoed support for the creation of a mechanism by which release turns on risk and is poised to lead in the General Assembly. I trust that leaders from across the state come together and carefully consider the Governor’s and Senate Pro Temp Haile’s efforts around pretrial reform as in the best interest of safety, fiscal necessity, and of course, justice.

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