Posted by: Wade Davies on Jul 1, 2021

Journal Issue Date: July/August 2021

Journal Name: Vol. 56 No. 4

When I was in the fourth grade, our Sunday School teacher decided it would be a good idea to take a van full of 10-year-olds to the old Nashville Jail on Sunday morning. (For all of you Sunday School teachers — I do not recommend this, but I still vividly remember the scenes.) Maybe because of that Sunday trauma, I have always been aware of and sensitive to conditions in jail. If you don’t think that pre-trial incarceration is a serious issue, I do recommend visiting an inmate.

Many criminal defense lawyers do not deal with bail issues often, but pre-trial release determinations can be critical to the outcome of a case for a defendant. Many defendants spend more time in pre-trial detention, unable to make bail, than they ever spend serving a sentence after conviction. Some people literally spend years in pre-trial incarceration. Between the need to decrease jail populations during the pandemic and other calls for criminal law reform, bail has become a hot issue.

In Tennessee, we already have statutes on the books that should decrease the rates of pre-trial incarceration. Because serving time in a local jail can have so many negative consequences, defense counsel should take a close look at the statutes governing pre-trial release and try to help as many clients as possible get relief after an individual determination on what conditions are required. Bail might not seem like the most exciting part of defense counsel’s job, but it can make all the difference to a client. It is also without question easier to prepare for trial with a client who is not in jail.

Tennessee’s bail laws are quite specific about the factors to be taken into account in making release determinations. As a practical matter, though, there are rarely individual determinations made in setting bail for a recently arrested defendant. After a warrantless arrest, officers usually swear to a warrant before a judicial commissioner or clerk.1 Bail is often set at that time. The defendant is generally not present and does not have counsel. There is no uniformity to how monetary bail is set. Some jurisdictions have standard amounts depending on the severity of the charges. Other jurisdictions do not have any formal guidance. While it does benefit some defendants to have bail set immediately so they can make it quickly (even if they have to spend a lot of money on using a bondsman), other defendants are subjected to bail amounts that they simply could never make. Unless a motion to modify bail is granted, those individuals will wait in jail until trial. As a practical matter, many of them will plead guilty. Often defendants may be provided with a difficult choice at an early court appearance: plead guilty and go home on probation or fight the charge but stay in jail until trial.

Adherence to the existing Tennessee statutory and constitutional provisions should prevent that unfair choice from happening in all but the rarest circumstances. First, the right to bail is enshrined in both the federal and state constitutions. The Eighth Amendment provides, “Excessive bail shall not be required….”2 Article 1, § 15 of the Tennessee Constitution provides that “all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great.” The “Release from Custody and Bail Reform Act of 1978” mirrors the constitutional requirements.3 Additionally, excessive bail violates Tenn. Const. Art. 1, § 16, which mirrors the language of the Eighth Amendment to the federal constitution.4

Here are a few practical issues to consider from our existing statutes:

1. Release on recognizance. The statutes mandate that the first preference is for release on recognizance or an unsecured bond.5 The magistrate is directed to determine whether release without conditions or on an unsecured bond will reasonably assure the presence of the defendant. Factors to consider include length of residence in the community, employment, family ties, reputation, character and mental condition, prior record, people who can vouch for the defendant, the nature of the offense and apparent probability of conviction.6

Note that danger to the community is not mentioned. The only issue is whether the defendant will appear.7 Danger to the community is only to be considered if the court concludes that a monetary bail is necessary, and the defendant has a criminal record.8 Thus, unless consideration of the factors indicates that the defendant will not attend court, the defendant should be released without having to pay anything.

2. Least onerous conditions. Then, only if a defendant does not qualify for release on his or her own recognizance, the court shall impose the least onerous conditions reasonably likely to assure the defendant’s appearance in court.9 Tenn.Code Ann. § 40-11-116(b) provides the various conditions that may be imposed, including reasonable restrictions on the defendant’s movements, associations and activities designed to secure the defendant’s appearance. These conditions can be imposed instead of monetary bail.

3. Monetary bail is the last choice. The bail statute clearly states that monetary bail is a last resort remedy and is to be considered after the court has considered other conditions of release, such as pre-trial supervision. Under Tenn. Code Ann. § 40-11-117 “[a]bsent a showing that conditions on release on recognizance will reasonably assure the appearance of the defendant as required, the magistrate shall, in lieu of conditions of release … require bail to be given.” This is perhaps the most surprising fact about the bail statutes. While in reality monetary bail is often the default — requiring a defendant often to spend significant funds to hire a bonding company to write a bond — the statute says it should be a last resort.

A bail set so high that there is no way for a defendant to make it is equivalent to being held without bail.10 The Fifth Circuit has found an equal protection violation when bail was set solely by a schedule without regard for ability to pay.11 The Tennessee Attorney General has also opined regarding the need for individualized hearings under our statute.12

4. Alternatives.

(a) Third Party Surety – Here I don’t mean a professional bonding company. The statute provides that bail may be secured by a bond in the form of a “written undertaking signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer.”13 This means that no money is required. If a client has friends or family who are willing to guarantee that the defendant comes to court, this should be attempted more often. If you have never done this before, contact me and I can get you a form.

(b) Property bonds – Securing bail with real property also can prevent a large outlay of cash. Unfortunately, very few people can do this because it requires a deed of trust and that there be equity of at least 150% of the bail being secured.14

(c) Cash bail – If bail is set at a reasonable amount, some defendants can post that amount with the clerk rather than paying a fee to a bonding company. Sometimes a court can be persuaded to lower the bail if the defendant intends to post cash bail. In my opinion, if monetary bail is required at all, there are benefits to a low bail amount secured by cash. For example, if a defendant has to pay a bonding company in excess of $2,500 (10 percent plus a fee) to write a bond to secure a $25,000 bail, the defendant is out $2,500. And because the defendant will not get any of that money back, there is no additional incentive to come to court. On the other hand, if a defendant makes a $2,500 cash bail, he or she stands to get that money back upon the conclusion of the proceedings. Thus, there is a financial incentive to come to court.

Finally, even if a defendant is accused of an additional violation while on bail, the defendant still has a constitutional right to bail. It is possible to forfeit such a right, but in State v. Burgins, the Tennessee Supreme Court spelled out the process that must be used before revoking bail and determining that the right was forfeited.15 The court strongly affirmed the constitutional nature of the right to bail and noted the adverse effects of the denial of bail. The court emphasized that “[b]ail is a basic component of the American judicial system and is predicated on the principle ‘that a person accused of [a] crime shall not, until … finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment.’”16 The court further emphasized that pretrial release permits unhampered preparation of a defense.

Despite the fact that bail dates to medieval England,17 it is currently a hot topic. This column is designed to emphasize that statutes are already in effect that, properly applied, should minimize unfair detention. To emphasize how important this issue is constitutionally, I recommend reading the full version of United States District Judge Corker’s recent Memorandum Opinion and Order granting a preliminary injunction enjoining the detention of anyone arrested on a warrant where bail was set ex parte without an individualized hearing within a reasonable period.18 The order is based on constitutional provisions rather than the application of the Tennessee statute but is compelling in its examination of the procedures used in at least one Tennessee county.

Maybe the first step toward reform is for everyone in the criminal justice process to carefully study the bail laws and make sure that individuals are not held unnecessarily.

WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board


1. Tenn. Code Ann. § 40-11-105 limits the circumstances under which bail may be set by a clerk and sets maximum amounts when set by a clerk.
2. U.S. Const. Amend. 8.
3. Tenn. Code Ann. § 40-11-102.
4. See Tenn. Const. Art. 1, § 16; State ex rel. Hemby v. O’Steen, 559 S.W.2d 340, 342 (Tenn. Crim. App. 1977).
5. Tenn. Code Ann. § 40-11-115.
6. Id.
7. Authority interpreting the preventative detention provision of the federal Bail Reform Act of 1984, 18 U.S.C. § 3142(e), recognizes that preventative detention to deter future criminal conduct can in some situations be an appropriate consideration only if the prosecution demonstrates by clear and convincing evidence that there are no release conditions which would reasonably assure the safety of any other person and the community. See United States Salerno, 481 U.S. 739 (1987).
8. Tenn. Code Ann. § 40-11-118(b)(7).
9. Tenn. Code Ann. § 40-11-116(a).
10. State v. Burgins, 464 S.W.3d 298, 303-305 (Tenn. 2015) (discussing right to bail and citing Stack v. Boyle, 432 U.S. 1 (1951)).
11. O’Donnell v. Harris Cty. 892 F.3d 147 (5th Cir. 2018).
12. Pre-set Bond Schedules, Tenn. Attorney Gen. Op. No. 05-018 (2/4/2015).
13. Tenn. Code Ann. § 40-11-122(2).
14. Tenn. Code Ann. § 40-11-122(1).
15. 464 S.W.3d 298 (Tenn. 2015).
16. State v. Burgins, 464 S.W.3d 298, 303 (Tenn. 2015), quoting Hudson v. Parker, 156 U.S. 277, 285, 15 S. Ct. 450, 39 L. Ed. 424 (1895).
17. State v. Burgins, 464 S.W.3d at 303.
18. Torres v. Collins, et al, No. 2:20-CV-00026-DCLC, Eastern District of Tennessee, Doc. 90, filed Nov. 30, 2020.