ACLU, other advocates land bail policy they wanted in Shelby County

Shelby County’s new bail policy is exactly what the ACLU and other progressive advocates hoped for: An end to the jailing of county residents who aren’t a public safety risk simply because they lack cash, criminal justice reformers told MLK50: Justice Through Journalism.

Last week, seven of the county’s nine General Sessions Criminal Court judges signed a new “standing bail order” that outlines a much more rigorous and transparent process for setting bail. These are the judges who either set bail or are in charge of the judicial commissioners who do in the vast majority of cases.

The new policy catapults Shelby County from having “a particularly bad” system into “the top tier of better bail systems” nationwide, according to Andrea Woods, a staff attorney with the ACLU, which is working to reform bail practices across the country. If the courts follow through on all of the order’s promises, the county’s pre-trial jail population should drop considerably from its current level of about 2,500, said Josh Spickler, executive director of Just City. However, Spickler declined to estimate the size of that drop.

The order says, going forward, this is how the bail process will go: 

• When someone arrested arrives at jail, their ability to afford bail will be assessed using a calculator built by the Vera Institute of Justice, a nonprofit aimed at “ending mass incarceration.”
• A judicial commissioner — who reports to the General Sessions judges — will then determine whether or not the person should be released without bail, released with a bail the calculator says they can afford, or considered for a high, unaffordable bail.
• If the commissioner thinks an unaffordable bail may be necessary, they will set a date for a bail hearing that must be held within 72 hours. 
• The hearings will be open to the public and will allow the arrested individuals — or their public defenders or lawyers — to present arguments against a high bail. 
• At the hearing’s end, a judge or judicial commissioner will only impose a high bail if it is deemed that no other conditions will “reasonably prevent (the defendant’s) flight or reasonably assure the safety of the public.” And, they will have to explain how they reached this decision.  

This policy is the result of negotiations between the judges, the Shelby County Board of Commissioners, the ACLU, Just City and others, which followed the ACLU and Just City threatening a lawsuit late last year over bail-setting practice in the county. 

Woods said the ACLU achieved far more in Shelby County than it has been able to in other parts of the country because of public officials’ willingness to improve the system. In Glynn County, Georgia, for instance, the ACLU was only able to secure an agreement that the county would make bail more affordable for misdemeanor cases. And in places such as Dallas, the organization is in the midst of a years-long legal battle to try to secure a policy like Shelby County’s new one. 

Spickler said his group got everything it had hoped for in the negotiations, other than it wanted the bail hearings to be set within 24 hours of someone’s arrest. While he’s thrilled with the outcome, he said the real test will come now that the court must implement these major changes — working with all nine General Sessions Criminal Court judges, including the two who didn’t sign the order but are still bound by it.

Until now, the court has handled cash bail in a way Spickler and Woods believe violates state law and the U.S. Constitution. It has regularly held people for weeks or months without a bail hearing, not considered what a defendant can afford when setting bail, and detained people indefinitely even if they are not a flight or safety risk.

Such a system unjustly punishes people for their poverty, Willie Santana, a visiting assistant law professor at Lincoln Memorial University in Knoxville, told MLK50: Justice Through Journalism.

“If the person can make that money bail, if they’re wealthy or have family resources, then the case just progresses. They get out. No problems,” Santana said. “It’s when they’re poor that things start to get really screwy and really unjust.”

A 2021 Brookings Institution study found that people who spent time in pretrial detention “faced subsequent long-term damage in the form of family separation, work interruption and loss of housing, or even death.” Having an arrest or jail time on record can decrease a person’s job prospects for up to four years, the study found, and can result in tens of thousands of dollars in lost income. 

In recent years, the Memphis Interfaith Coalition for Action and Hope, the Official Black Lives Matter Memphis Chapter and other local grassroots advocates have been pushing for bail reform.

To make the policy changes possible, the Shelby County Board of Commissioners unanimously approved $2 million on Aug. 8 to cover the costs of hiring more judicial commissioners and other personnel, as well as an additional $1.4 million to renovate space at the Shelby County Jail at 201 Poplar Ave. for a new bail hearing room.

Spickler thinks the changes will ultimately reduce violent crime in Shelby County in two ways. First, some research suggests that pretrial detention increases the chance of someone reentering the criminal justice system later in life. Spickler said this is likely because detention costs people jobs, relationships and apartments. Secondly, if Shelby County’s jail no longer contains tons of nonviolent offenders, it will be able to focus its resources on violent offenders. 

“Doing this means that we can have more resources for (rapists and murders) and those crimes and those victims,” Spickler said. “This is about focus.”

Jacob Steimer is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email him at Ja***********@ml***.com

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