Innocent until proven guilty: An argument for the unconstitutionality of the U.S. Bail System
By: Amber Sherman
Tags: Criminal Justice, Thesis Writing, End Money Bail, Legal, Legislation

Innocent until proven guilty: An argument for the unconstitutionality of the U.S. Bail System

Abstract

The current money bail system contributes to the increasing proportion of jail inmates who are not convicted of any crime. Statistically, that is 50% of jail inmates in 2000 and 62% in 2013 according to the American Bar Association. Traditionally, the system was developed to ensure that the defendant appears at court and to prevent new crimes. But in turn, the system is used to prey on the poor who don’t have funds to bond out of jail. Poor and Impoverished communities are disproportionately affected by the current U.S. bail system and consequently imprisoned for extended periods of time without being convicted of a crime thus infringing on their constitutional right affirmed by the Supreme Court in the 1895 case Coffin v. United States.

A key part of my research is delving into the Comprehensive Crime Control Act of 1984. It contains some of the most significant changes in the federal criminal justice system ever enacted at one time. The act overhauled the bail provisions, the sentencing system, the insanity defense, and the forfeiture laws, as well as created a number of new substantive offenses. The questions I plan to answer in this project are, why do we have a money bail system if we’re presumed innocent until proven guilty, how can the money bail system be amended to not disproportionately affect poor people, and who is the average american affected by the money bail system and what current systems are in place to help them? I used resources and scholarly essays from Memphis Law School to gather research and information about the subject. I also conducted interviews with communities mostly affected locally and nationally. Lastly, I have drafted a Legislative Proposal amending the current system to directly address the issue. Keywords: Money Bail, Bail Reform, Innocent until proven guilty, US Bail System

Introduction

According to 2016 data from the U.S. Department of Justice, almost two-thirds of the 730,000 people already incarcerated in U.S. jails on any given day have not been convicted of a crime (Zeng,2018). This is because most simply can’t afford to pay their money bail even when set at relatively modest amounts. On the contrary, others cannot afford it because the bail amount is set intentionally beyond reach so they remain in jail awaiting trial (Schnacke, 2017). When I read these statistics, and the circumstances surrounding them only one thing comes to mind, “What happened to innocent until proven guilty?” This is why bail reform of the U.S. Bail system is needed.

I plan to prove the current practice we have as a country is unconstitutional and reform needs to be implemented. I am a Graduate student at Hodges University, and a native of Memphis, Tennessee. Growing up in Memphis has made me passionate about bail reform because over 70% of Shelby County’s current jails house people who have not been convicted of a crime, they are simply poor and cannot afford the bail amount. The main questions I plan to address are, is the current Money Bail system in the country unconstitutional and what reforms can be put in place to address the issue?

Factual Background

In 2016, California Supreme Court Chief Justice Tani Cantil-Sakauye proclaimed “We must not penalize the poor for being poor” in reference to reforming the US bail system (​Bureau of Justice Statistics (BJS)​, 2014). ​In 2013, ​62 percent​ of county jail inmates were non-convicted individuals awaiting trial, the majority of whom were there because they could not pay their bail. Black and Latinos make up 50 percent of jail populations but only ​29 percent of the U.S. population (​Prison Policy Initiative​, 2014). The bail system used in the United States actually originated from 1,000-year-old English roots. The Anglo-Saxon legal process was created to provide an alternative to blood feuds to avenge wrongs, which often led to wars.

As Anglo-Saxon law developed, wrongs once settled by feuds or by outlawry were settled through a system of “bots,” or payments designed to compensate grievances (Jackson, 2018). Essentially, crimes were considered private affairs unlike our current system of prosecuting in the name of the state. Suits brought by persons against other persons typically sought remuneration as the criminal penalty. In a relatively small number of cases, persons who were considered to be a danger to society, persons caught in the act of a crime, or the process of escaping were either mutilated or executed. All others were presumably considered to be “safe,” so the issue of a defendant’s potential danger to the community if released was not a primary concern. The Anglo Saxons felt prisons were costly and troublesome, but they were concerned that the accused might flee to avoid paying the bot, or penalty, to the injured persons (Jackson, 2018).

Therefore, a system was created in which the defendant was required to find a surety, or person who would vouch for them, who would provide a pledge to guarantee both the appearance of the accused in court and payment of the bot upon conviction. The amount of that pledge was named “bail” which became the modern term money bail bond, and was identical to the amount or substantive worth of the penalty. With this system in place, if an accused were to flee, the responsible surety would pay the entire amount to the private accuser, and the matter was done. The Anglo-Saxon bail process is referred to as “the last entirely rational application of bail” because the amount of the pledge was identical to the amount of the fine making the process equitable. Upon conviction, the system accounted for the seriousness of the crime and fulfilled the debt owed if the accused did not appear for trial. All prisoners facing penalties payable by fine were bondable, and the bail bond was perfectly linked to the outcome of the trial, basically money for money (Jackson, 2018).

In the period following the Norman invasion, criminal justice gradually became an affair handled by the state. The criminal process could be initiated by the suspicions of a jury or the sworn statements of the aggrieved, similar to the US system used currently. Capital and other forms of corporal punishment replaced money fines for all but the least serious offenses, and the delays between accusation and trial became lengthier as traveling royal justices held court in each town (Schnacke,2010). Over time, public mutilations and executions were gradually phased out, while the overall use of corporal punishment began to increase, giving many offenders a greater incentive to flee. System delays also caused many persons to suffer in jails, and the un-checked discretion given to judges and magistrates to release defendants led to instances of corruption and abuse (Jackson, 2018).

Moreover, as the penalties changed, ideas about which persons should be bondable also shifted. The first to lose any right to bail whatsoever were persons accused of homicide. Due to exposure of widespread abuse in the bail bond-setting process, Parliament passed the first Statute of Westminster, which assembled and codified 51 existing laws, many of which originated from the Magna Carta and covered bail. The Statute removed the traditional Anglo-Saxon customs by establishing three criteria to govern one’s bail options. First, the nature of the offense, the laws categorized offenses that were and were not bailable. Second, the probability of conviction required the sheriff to examine all of the evidence and measure the accused level of suspicion. Lastly, the criminal history of the accused, which was often referred to as the bad character of the accused (​Prison Policy Initiative,​ 2014).

The English protection against pretrial detention over time evolved and began to comprise three separate but essential elements. The first was the determination of whether a given defendant had the right to release on bail, answered by the Petition of Right, by a long line of statutes which spelled out which cases must and must not be bailed by justices of the peace or what we now call sheriffs, and by the discretionary power of the judges of the king’s bench to bail any case not bailable by the lower judiciary. The second was the habeas corpus procedure which was developed to convert into reality rights derived from legislation that could otherwise be thwarted. Third was the protection against judicial abuse provided by the excessive bail clause of the Bill of Rights of 1689 (Schnacke,2010).

Even before some of England’s later reforms, in 1641 Massachusetts passed its Body of Liberties, creating an unequivocal right to bail for non-capital cases, and re-writing the list ofcapital cases. In 1682, Pennsylvania adopted an even more liberal provision in its new constitution, providing that all prisoners shall be bailable by sufficient sureties, unless for capital offenses, where proof is evident or the presumption great (Schnacke, 2010). The Pennsylvania law was quickly copied, and as the country grew the Pennsylvania provision became the model for almost every state constitution adopted after 1776. This is important considering that the United States Constitution itself only explicitly covers the right of habeas corpus in Article 1,Section 9. The Constitution also states the prohibition against “excessive bail” in the Eighth Amendment, which has been traced back to the 1776 Virginia Declaration of Rights. But there is no explicit right to bail in the U.S. Constitution, and the Constitution does not define which crimes are bailable, nor which defendants can be detained (Schnacke,2010).

As American law governing release on bail bonds was being established, cultural differences between the colonies and England also led to changes in the administration of bail.For less serious crimes, the Anglo-Saxon system provided for pretrial release. Under the Anglo-Saxon system of pretrial release, the sheriffs relied on a surety, or some third-party custodian who was usually a friend, neighbor, or family member, to agree to stand in for the accused if they ran. Over time, arbitrary money bail bond amounts coupled with a growing number of defendants who were unable to pay them either by themselves or with the help of friends or relatives, combined to create a profession unique to the field of American criminal justice.

Legal Background

The commercial money bail bond industry was born out of this dilemma. Taylor v. Taintor, an 1872 U.S. Supreme Court case is commonly cited as the authority for bail bondsmen to act as bounty hunters. In 1866, sureties made an $8,000 cash bond for Edward McGuire in Connecticut, after he was charged with grand larceny. While awaiting trial in Connecticut, McGuire returned to his home in New York. Unknown to the bondsmen in Connecticut, McGuire was wanted in Maine for another felony. Upon request from the Governor of Maine later in 1866, the Governor of New York extradited McGuire to Maine, where he was convicted of burglary in 1867 and imprisoned for fifteen years. When McGuire failed to appear for trial in Connecticut in October 1866, the cash bond was forfeited. The Connecticut bondsmen sought relief from the forfeiture on grounds that they were not at fault in failing to secure McGuire’s appearance, but rather that his nonappearance was the result of his extradition to Maine, an intervening “act of law” under the Extradition Clause of the U.S. Constitution. The Supreme Court held that the sureties were at fault and were not protected by the Extradition Clause by a vote of 4 to 3. In summary, the sureties’ neglect in failing to keep up with McGuire and to inform the New York authorities of the pending Connecticut case caused McGuire’s nonappearance. This case is commonly referred to as the landmark case that confirmed bail bondsmen as bounty hunters (Lund, 2000).

Following this the bail system evolved over time. In the 1960s there was a call for bail reform. In 1966, the Federal Bail Reform Act was written and passed. This act was the first major reform of the federal bail system since the Judiciary Act of 1789 and it contained numerous provisions (Jackson, 2018). First, a presumption in favor of releasing non-capital defendants on their own recognizance. Secondly, conditional pretrial release with conditions imposed to reduce the risk of failure to appear. Also, restrictions on money bail bonds, which the court could impose only if non-financial release options were not enough to assure a defendant’s appearance. Moreover, a deposit money bail bond option, allowed defendants to post a 10% deposit of the money bail bond amount with the court in lieu of the full monetary amount of a surety bond. Lastly, a review of bail bonds for defendants detained for 24 hours or more. The act stated that non-capital defendants were to be released pending trial on their personal recognizance or on “personal bonds” unless the judicial officer determined that these incentives would not adequately assure their appearance at trial.

Following this reform, the bail system was once again reformed in the 1970s and 1980s. Throughout this historical timeline of how the bail bond system was established, it’s quite easy to see how the bail system began leaning towards corruption and penalizing the impoverished. The amount of bail for the modern-day bail system depends on the severity of the crime but is also at the judge’s discretion. Some jurisdictions have bail schedules that recommend a standard bail amount. For example, in Los Angeles, the bail schedule recommends $25,000 for perjury or sexual battery, $100,000 for voluntary manslaughter, and $1,000,000 for kidnapping with intent to rape (Silverman, 2007). In determining bail, a judge may take into account this amount but will also consider the defendant’s criminal record, his or her history of showing up for past court appearances, ties to the community, whether the suspect is a danger to others and any other concerns that may be raised by the defendant’s attorney. In some cases, bail may be waived altogether.

The current money bail system has no relation to innocence. Over 70 percent of people currently in jail have not been convicted of a crime. Bail reinforces the racial disparities of the American criminal justice system. African-American and Hispanic people are more likely to be arrested, issued bail, and less likely to be able to afford it. Constitutionally speaking this entire practice is illegal. A bedrock principle of the American criminal justice system is that a defendant accused of a crime is presumed innocent until proven guilty beyond a reasonable doubt. This protection comes from the due process guarantees in the Fifth and Fourteenth Amendments of the U.S. Constitution. It exists to guard against convictions based on factual error. Citizens are considered innocent until proven guilty, and to take away their liberties and incarcerate them until they pay bail is criminal. Over 30 years ago, the Supreme Court explained in United States v. Salerno, “In our society, liberty is the norm, and detention prior to or without trial is the carefully limited exception.” This is not being practiced in our criminal justice system today (May, 2018).

Constitutional Interpretation

There are several constitutional rights that can be used to prove citizens’ civil liberties are being violated due to the current bail system. First, the presumption of innocence is the legal principle that one is considered innocent until proven guilty. In many countries, the presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 1. The Fifth Amendment includes a due process clause stating that no person shall “be deprived of life, liberty, or property, without due process of law.” The Fifth Amendment’s due process clause applies to the federal government, while the Fourteenth Amendment’s due process clause applies to state governments. The Supreme Court has interpreted the Fifth Amendment’s Due Process Clause as providing two main protections; procedural due process, which requires government officials to follow fair procedures before depriving a person of life, liberty, or property, and substantive due process, which protects certain fundamental rights from government interference (Harper, 2007).

Procedural Due Process is a legal doctrine in the United States that requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process requires at least for the government to afford the person notice, an opportunity to be heard, and a decision made by a neutral decision maker. This amendment would apply to the pre-detention process when bail is being set. If judges were applying this doctrine correctly bail amounts wouldn’t be so egregious (Strauss, 2013).

The Supreme Court has held that the Excessive Fines Clause prohibits fines that are “so grossly excessive as to amount to a deprivation of property without due process of law” ( Strauss, 2013). The Court struck down a fine as excessive for the first time in United States v. Bajakajian in 1998. Under the Excessive Bail Clause in the Eighth amendment, the Supreme Court has held that the federal government cannot set bail at “a figure higher than is reasonably calculated” to ensure the defendant’s appearance at trial (Strauss, 2013). The Supreme Court has also ruled that the Cruel and Unusual Punishment Clause applies to the states as well as to the federal government, but the Excessive Bail Clause had not been applied to the states. On February 20, 2019, the Supreme Court ruled unanimously in Timbs v. Indiana that the Excessive Fines Clause also applies to the states. The pre-trial processes put into place are also aimed to prevent this, but yet the goal of the Eighth Amendment has continually been ignored and not properly applied. Due to the continued neglect of and/or misapplication of the intent of the Excessive Fines Clause and the Fifth Amendment’s Due Process Clause, specific legislation is needed.

Comprehensive Crime Control Act

The Comprehensive Crime Control Act is recognized as one of the largest and most significant reforms of the U.S. criminal justice system. The act contains 23 chapters, but it is the first 12 chapters that are most important. The most notable provisions of the Comprehensive Crime Control Act include sections on bail conditions, the insanity defense, sentencing, victims of crime, justice assistance, and drugs and narcotics. The act authorized courts to consider dangerousness when setting bail conditions, and also allowed courts to establish pretrial detention if necessary. If there is reason to believe a person will not return to court as required or that releasing someone on bail would put an individual or community at risk, certain bail conditions and pretrial detention are considered acceptable (Panter, 1985).

The Comprehensive Crime Control Act set the precedent for the gross negligence and abuse of the U.S. Bail System. The act reinforced bias and on occasion racist or discriminatory ideals towards black and brown poor people. Being jailed pretrial often leads to people losing their jobs, not being able to care for their children, and an overall disruption of their lives. Being held pretrial has been found to make both conviction and incarceration more likely. People held through pretrial detention are more likely to plead guilty simply to put an end to their case, with the hopes of returning home, and judges are statistically more likely to sentence someone to jail once they have been held in jail pretrial (Bailey, 2018). This means that people held on money bail are more likely to be convicted and sentenced because they are poor, which itself is not illegal. Statistics have found 68% of pretrial detainees have been charged only with drug, property, or public order crimes all of which are not dangerous (Bailey, 2018).

The United States spends about $38 million a day to detain people pretrial, and nearly $140 billion a year. This cost is paid by taxpayers and it could be redirected into education, housing, and economic development. Here locally the practice of using bail to determine pretrial release continues to drive the growth in local jail populations throughout Tennessee. The cost to local taxpayers to house pretrial detainees is approximately $35 per day, and that does not factor the additional cost that local taxpayers absorb to build more jails. In 2017, the average number of pretrial detainees housed in local jails totaled 14,664, presenting a total cost of nearly $60 million a year. Currently, over half of Tennessee’s total jail population is composed of pretrial detainees, up from 32 percent in 1997 (Warren, 2018). The U.S. Bail System has become a mechanism by which a person of means can purchase their freedom. A wealthy person charged with a violent crime can be released because they could afford bail. However, a poor person will often times remain in jail awaiting the disposition of misdemeanor possession charge.

This practice is a violation of citizens rights to be presumed innocent until proven guilty as decided in the landmark case Coffin v. United States. The Court held in this case that the presumption of innocence was a self-evident rule of the Anglo-American criminal justice system. The Court then went on to hold that all Judges in all jurisdictions of the United States are to be required to give an instruction when requested, and sometimes when not requested about the presumption of innocence to all juries. While the presumption of innocence is not expressly written into the constitution, it is expressed through the Fifth Amendment. If a citizen is detained for months or years as they often are in US Jails while awaiting trial for a crime they have not been convicted of due to not being able to pay bail, they have been deprived of life and liberty without due process of law. Due Process of the law requires government officials to follow fair procedures before depriving a person of life, liberty, and property. It is clear from the above statistics that unconstitutional practices are occurring (Strauss, 2013).

Counter Arguments

The pushbacks to bail reforms only bring up dated fears and bigotry against the poor. Some of the backlash may stem from a perception that pre-trial detention is part of the punishment for crime, so defendants who are released are seen as getting away with something. Punishment before trial is fundamentally at odds in a legal system where defendants are presumed innocent until proven guilty. There is no existing data to prove the pre-trial detention aids in public safety and deterrence of committing a crime. In fact, numerous research studies say quite the opposite. The Bronx Defenders through its affiliate the Bronx Freedom Fund, bailed hundreds of people between 2007 and 2009. According to Robin Steinberg, executive director of The Bronx Defenders, “During the 18 months that the Bronx Freedom Fund operated, 150 clients were bailed out and the return rate of our clients was an impressive 95 percent. Additionally, not one client who received Freedom Fund assistance, and was bailed out, was sentenced to jail on their case and almost 50 percent of the cases were dismissed entirely” (Pringle, 2012).

The high return rate fundamentally undermines the supposed purpose of bail of incentivizing defendants to show up to their court dates because they have a financial stake in their appearance. Furthermore, the fact that half the charges were dropped indicates that prosecutors were overcharging the defendants and hoping their inability to post bail would induce guilty pleas. There are numerous studies conducted in other cities addressing the poverty aspect of bail, each pilot program had similar results, over 90 percent of the people bailed out of jail returned for their court date. Therefore, the argument of public safety is null and void (Pringle, 2012).

Solutions

Bail reforms throughout the country have been successful. New Jersey was one of the first states to acknowledge that the use of money bail discriminated against the poor and then took action to overhaul its money bail system. A study released in 2013 by the Drug Policy Alliance revealed New Jersey’s cash bail system was clearly discriminating against the poor. “It was all based upon their economic circumstances,” said Judge Glenn A. Grant, Acting Administrative Director of New Jersey’s courts. “And that’s not what this country stands for.” These alarming statistics were the driving force for New Jersey to launch Criminal Justice Reform. In January 2017, the state essentially eliminated cash bail despite concerns from segments of the community who feared a public safety crisis. Nearly three years later, the first studies on the reform are emerging, and all signs are pointing toward success (Dabruzzo, 2019).

California has completely ended Money Bail in their state as of 2018. California Governor Jerry Brown signed legislation in August of 2018 that abolishes cash bail in the state. The legislation eliminates bail schedules, which tie bail amounts to the charged offense, and, as currently utilized in California, were likely unconstitutional. The legislation also gets rid of the bail bonds industry which is known for its corrupt and predatory practices and replaces a money based pretrial release system with a risk based system. The impact of this high rate of pretrial detention is huge throughout the country, not just in California. Not only are defendants deprived of their liberty and subject to the pains of confinement in often dangerous jails before being convicted of any offense, but they are more likely to plead guilty, more likely to be convicted, more likely to be sentenced to jail or prison. All of these consequences fall more heavily on the poor and racial and ethnic minorities.

New Jersey has also taken the plunge and removed money bail from their criminal justice system. Judges, prosecutors, public defenders, private counsel, and court administrators sat with representatives from the Legislature and governor’s office to find a solution. Both sides of the aisle and both sides of the courtroom came together focused on fixing what was broken with the state’s criminal justice system. Joseph E. Krakora, a New Jersey Public Defender stated, “There really has never been any logic to a system that determines your pretrial status based on your access to resources, your wealth” (Dabruzzo, 2019).

In 2014, the previously mentioned committee made a unanimous recommendation to completely overhaul the system, shifting it from one that relied heavily on monetary bail to one that takes money out of the equation and is “risk-based”, where defendants are held or released based on their risk of failing to show up for court or incurring new criminal charges. The courts’ default, the committee suggested, should be to keep people out of jail. The committee also recommended the use of a risk-assessment tool to help make risk determinations, a pretrial services program to monitor those who are released, speedy-trial laws to ensure that criminal cases are brought to trial more promptly, and a constitutional amendment that would allow “preventive detention”. Preventative detention would give judges the ability to detain a person without the option of bail if there’s a risk to public safety (Dabruzzo, 2019).

A study on bail reform in New York found New York’s lower reliance on bail hasn’t led to defendants not showing up in court. The city’s return-to-court rate is 86 percent compared to about 75 percent nationally. Unlike other states who passed legislative reforms, New York’s results are because of a culture change among judges and other decision-makers, not any change in statutes or court rules. New York Judges are now more aware of their full toolbox of alternatives to bail, including a “supervised release” program championed by Mayor Bill de Blasio that lets them release defendants under monitoring (Branigin, 2019). “We have also begun to understand how the repeat offenders in criminal court often have mental-health and housing issues that are only exacerbated by setting bail and sending them to jail,” said George A. Grasso, supervising judge of the Bronx Criminal Court and of all arraignments in New York City. New York City Prosecutors, in most parts of the city at least, have somewhat reduced how much bail they ask for in low-level cases. And a strong cohort of public defenders in the Bronx and Brooklyn have fought excessive pretrial detention, while making sure to bring community voices into the debate (Branigin, 2019). The Bail Reform methods in California, New Jersey, and New York have proven not only successful but adaptable to other states.

Legislative proposal

Our current U.S. Bail system is punishing those experiencing poverty and needs to be reformed. Multiple studies have shown bail is not the determining factor of whether someone will return for a court date. Also, the high return rate of those with no bail amount fundamentally undermines the supposed purpose of bail of incentivizing defendants to show up to their court dates because they have a financial stake in their appearance. There is also no existing data to prove that pre-trial detention aids in public safety and deterrence of committing a crime. In fact, numerous research studies say quite the opposite. In New York for example, the Bronx Defenders through its affiliate the Bronx Freedom Fund, bailed hundreds of people between 2007 and 2009 and the return rate of the clients was 95 percent.

SECTION 1. It is the intent of the Legislature by enacting this measure to permit preventive

detention of pretrial defendants only in a manner that is consistent with the United States Constitution, as interpreted by the United States Supreme Court, and only to the extent permitted by the Tennessee Constitution as interpreted by the Tennessee courts of review.

TCA code 40–11–118 addresses Execution and deposit Bail set no higher than necessary Factors considered Bonds and sureties. Existing Tennessee law provides for the procedure of approving and accepting bail, and issuing an order for the appearance and release of an arrested person.

As currently written, in determining the amount of bail necessary to reasonably assure the appearance of the defendant while at the same time protecting the safety of the public, the magistrate shall consider the following:

(1)The defendant’s length of residence in the community;

(2)The defendant’s employment status and history and financial condition; (3)The defendant’s family ties and relationships;

(4)The defendant’s reputation, character and mental condition;

(5)The defendant’s prior criminal record, record of appearance at court proceedings, record of flight to avoid prosecution or failure to appear at court proceedings;

(6)The nature of the offense and the apparent probability of conviction and the likely sentence;

(7)The defendant’s prior criminal record and the likelihood that because of that record the defendant will pose a risk of danger to the community;

(8)The identity of responsible members of the community who will vouch for the defendant’s reliability; however, no member of the community may vouch for more than two (2) defendants at any time while charges are still pending or a forfeiture is outstanding; and

(9)Any other factors indicating the defendant’s ties to the community or bearing on the risk of the defendant’s willful failure to appear.

It is clear through the research presented that all of these factors are not being considered when setting bail. Therefore I so move to amend the current bail regulations to include the following:

a. Persons arrested and detained are required to be subject to a pretrial risk assessment conducted by Pretrial Assessment Services, which is defined as an entity, division, or program that is assigned the responsibility to assess the risk level of persons charged with the commission of a crime, report the results of the risk determination to the court, and make recommendations for conditions of release of individuals pending adjudication of their criminal case. This bill would require the courts to establish pretrial assessment services, and would authorize the services to be performed by court employees or through a contract with a local public agency, as specified. The bill would also require, if no local agency will agree to perform the pretrial assessments, and if the court elects not to perform the assessments, that the court may contract with a new local pretrial assessment services agency established specifically to perform the role.

b. All persons arrested or detained for a misdemeanor, except as specified, are required to be booked and released without being required to submit to a risk assessment by Pretrial Assessment Services.Pretrial Assessment Services is authorized to release a person assessed as being a low risk, on his or her own recognizance, as specified. Additionally, a superior court is required to adopt a rule authorizing Pretrial Assessment Services to release persons assessed as being a medium risk, as defined, on his or her own recognizance. If a person is not released, the court is authorized to conduct a pre arraignment review and release the person. The court is allowed to detain a person pending arraignment if there is a substantial likelihood that no condition or combination of conditions of pretrial supervision will reasonably assure public safety or the appearance of the person in court.

c. In cases in which the defendant is detained in custody, the bill would require a preventive detention hearing to be held no later than 3 court days after the motion for preventive detention is filed. The bill would grant the defendant the right to be represented by counsel at the preventive detention hearing and would require the court to appoint counsel if the defendant is financially unable to obtain representation. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program. The bill would require the prosecutor to give the victim notice of the preventive detention hearing. By imposing new duties on local prosecutors, this bill would impose a state-mandated local program.

d. The bill would create a rebuttable presumption that no condition of pretrial supervision will reasonably assure public safety if, among other things, the crime was a violent felony or the defendant was convicted of a violent felony within the past 5 years. The bill would allow the court to order preventive detention of the defendant pending trial if the court determines by clear and convincing evidence that no condition or combination of conditions of pretrial supervision will reasonably assure public safety or the appearance of the defendant in court. If the court determines there is not a sufficient basis for detaining the defendant, the bill would require the court to release the defendant on his or her own recognizance or supervised own recognizance and impose the least restrictive non monetary conditions of pretrial release to reasonably assure public safety and the appearance of the defendant.

The bill would require the Tennessee Supreme Court to adopt Rules of Court and forms to implement these provisions as specified, and to identify specified data to be reported by each court. The bill would require the Tennessee Supreme Court to, on or before January 1, 2021, and every other year thereafter, to submit a report to the Governor and the Legislature. The bill would provide that upon appropriation by the Legislature, the Tennessee Supreme Court would allocate funds to local courts for pretrial assessment services and the Department of Finance would allocate funds to local probation departments for pretrial supervision services, as specified.

Conclusion

In the words of Angela Davis, “Prisons do not disappear social problems, they disappear human beings. Homelessness, unemployment, drug addiction, mental illness, and illiteracy are only a few of the problems that disappear from public view when the human beings contending with them are relegated to cages.” As a society, we must take responsibility for the attack on impoverished communities, and the first step is acknowledging there is a problem.

Our current United States Bail system is flawed, somehow Pre-Trial Detention has become Poverty Detention. The system was developed to ensure that the defendant appears at court and to prevent new crimes. But in turn, the system is used to prey on the poor who don’t have funds to bond out of jail. My research has not only proven this system is unconstitutional but I have also provided solutions to said problem. Research has proven that states can end money bail and public safety will not be affected. States such as California, New York, and New Jersey have passed legislation and conducted internal training to end cash bail and bring the focus back to the original intent of bail.

My research has proven the current practice we have as a country is unconstitutional and reform needs to be implemented.Now, it is time we cease infringing upon individuals constitutional rights and end money bail.

References

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Branigin. (2019, March 11). Prosecutors around the Country Petition Governor Andrew Cuomo, state lawmakers to end Cash bail in New York. Retrieved June 27, 2020, from https://www.theroot.com/prosecutors-around-the-country-petition-governor-andrew-1833158650

Carbone, supra note 1, at 531 (quoting 5 American Char- ters 3061, F. Thorpe ed. 1909) (footnotes omitted).

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Dabruzzo, D. (2019, November 14). New Jersey set out to reform its Cash Bail SYSTEM. now, the results are in. Retrieved June 27, 2020, from http://www.arnoldventures.org/stories/new-jersey-set-out-to-reform-its-cash-bail-system-now-th e-results-are-in/

Dai. (2020, January 27). Arguments against New York’s Cash Bail reforms are dated. Retrieved June 27, 2020, from https://nyunews.com/opinion/2020/01/27/nyc-bail-reforms-progress/

Harper, T. (2007). Fifth Amendment. In The complete idiot’s guide to the U.S. Constitution (pp. 109–120). New York: Alpha.

J. (2018). Money over safety in Tennessee. Retrieved June 27, 2020, from http://www.beacontn.org/money-over-safety-in-tennessee/

Jackson, A. (2018, April 04). “Bail System History.”. Retrieved June 27, 2020, from http://www.burnsinstitute.org/blog/the-evolution-of-money-bail-throughout-history/.

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