Bail Reform Proponents Resort to Advancing the “If You’re Scary” Test to Create an Arrest-to-Prison Pipeline

In response: In Tennessee, if you're rich and dangerous, you can buy your way out of jail

Leave it to the proponents of bail reform to commence the opening salvo of a policy debate over a constitutional amendment to change Tennessee’s constitution by engaging in a series of distortions of facts in the Tennessean neatly-wrapped in class-rhetoric hyperbole in order to enflame the public and decision-makers.[1] Instead, bail reform constitutional amendments of the last decade have not been successful, and the entire theory advanced by the proponents presents an opening for other special interests to have a free-for-all in the pretrial supervision business, a relatively new, self-paid criminal dragnet of electronic incarceration heaved on the backs of disenfranchised defendants for which evidence of success is nearly completely lacking.

First, the proponents of bail reform cite the success of Detroit, Michigan (stop laughing and listen, please) as a reason to change the state constitution, but they fail to mention that the Michigan legislature just last week rejected the proposed bail reform package. That package, similar to the one under consideration in Tennessee, had been under consideration for two years, and was heard during the so-called “lame duck session,” dying on the calendar last week. It was in fact opposed by the Michigan House Republicans.[2] Keep in mind, Michigan was controlled entirely by Democrats for a two-year period, who, after losing an election in November to end that control, still then failed to pass the bail reforms. As to Detroit, let’s not use Detroit as the example of the shining crime-free city on the hill to be copied in Tennessee. While it has improved, it’s important to point out that bail reforms have not been proven by anyone to have succeeded in Detroit. Those reforms were implemented in part by a federal court decree after a lawsuit filed by none other than former U.S. Attorney General Eric Holder. That lawsuit and the subsequent alleged results of “success,” however, was not enough to convince Democrats to take bail reform across line during their fading once-in-a-generation hold of power.

Second, if New Jersey was a success, an argument we need not win today but will win later and have won in state capitols many times over, the proponents fail to tell the public that the cost of the New Jersey bail reform system has been in the neighborhood of half a billion dollars. They also fail to point out that New Jersey is the most mass incarcerated state in the United States, and racial disparities (at the most discriminatory level in the United States) have remained constant despite promises of the new Shangri-La of racial relations due to bail reform. To add insult to injury, despite spending half a billion in taxpayer dollars, the administrative judge who runs the system recently only gave it a B-minus letter grade. This despite attempting to supervise 91% of defendants who are released from custody by a state program, many of whom will turn out to be exonerated of the underlying charge.

Third, the proponents say we can use pretrial risk assessments in place of bail, and that we’ll solve the bail problem. Yet, once again, they fail to point out that nearly every credible civil rights group in this country says pretrial risk assessments are racially biased against African-American and Hispanic-American defendants and should not be used. The Leadership Conference on Civil Rights, for example noted that, “In the statement, the groups underscore that risk assessment tools are not a panacea to reforming our unjust and broken bail systems, and that, in fact, these tools can worsen racial disparities and allow further incarceration.”[3]

Fourth, the authors of the article, unfortunately, do not appreciate the engrained legal concept of the presumption of innocence and its constitutional footprint on the fundamental right to bail, and have resorted to a new test they are creating from whole-cloth, the “if you’re scary” test. This test surely will not be abused by prosecutors, right? Of course, the authors of the article do not restrict their “scary” people to just those 85% crimes advocated by the private prison industry—they believe it could be anyone in Tennessee that prosecutors charge with any crime. As long as they are “scary” people, they go to jail.

In this country, however, according to the United States Supreme Court, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”[4] The proponents instead have come up with a new rule of law they created themselves that runs contrary to 250 years of American jurisprudence: “Simply put: If you’re scary, I don't care how much money you have. We should keep you away until a judge can hear your case.”

In our system of justice, however, we are not simply able to label people as “scary” until and unless juries convict them or they plead guilty. And even then, we don’t label and dehumanize human beings as “scary,” instead we label them as thus: guilty of the crime alleged and thus worthy of the punishment prescribed by the people’s legislature. The Supreme Court: “The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty.”[5] What it is not conditioned on is taking shortcuts to guilt by calling someone “scary.”

The constitutional amendment supported by the proponents would be just that, allowing for detention based solely on whether a prosecutor brings a charge of an 85% crime and thus decides someone is “scary.” That the proponents come right out and say we are constructing a regime so that we can have prosecutors get to pick who is “scary” or what, “un-scary,” as the basis for pretrial detention, the so-called safeguards being mere window-dressing as we all knew they were, should be all the evidence we need that this is a flawed concept that will violate the rights of many who did not commit the crimes in the first place. Indeed, it will be the very, very “scary” very, very innocent people who will pay the price.

Finally, if you want to know who stands to benefit from the new constitutional amendment, it’s time to follow the money. In this case, look no further than the providers of pretrial ankle monitors and other pretrial monitoring services. They are heavily pushing for the amendment and to the simple bail regime contemplated by the constitution of release on security or own recognizance, because they know that that like in New Jersey, 91% of defendants released under any new bail system will be supervised if friends, family, and bail agents with arrest powers are not involved. Judges have nothing to lose in ordering mass electronic incarceration.

These pretrial monitoring companies know that they are going to make huge dollars doing pretrial supervision under any new regime. Unfortunately, no one can prove this pretrial supervision is actually effective at deterring crime or increasing court appearance rates, unlike pretrial incarceration which has shown to deter, at a minimum, the person who is detained. Certainly no one can argue that pretrial supervision is effective at deterring the very same criminals who are saying they didn’t commit the crime that probation is failing to deter after they said they did it. If it is, ask them for their key published academic studies proving the effectiveness of pretrial monitoring—they simply don’t exist.

In short, there’s a great policy debate to be had on these proponents and the private prison industry’s effort and likely that of the monitoring companies to directly advocate to change the Tennessee constitution to create an arrest-to-prison pipeline. Distorting the facts is not going to help people make a clearer choice in opposing a proposed law that was rejected by the framers of the constitution and was part and parcel of the American Revolution against England and the erection of a wall of a presumption of innocence that the Tennessee Constitution protects that these proponents would demolish.

As Justice Marshall once wrote, “Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day, the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.”[6]

To those who would say we are anti-public safety in advocating for the right to bail, i.e., the right to be “scary” but innocent, we have but a simple two-word answer to that: expeditiously convict.

[1] https://www.tennessean.com/story/opinion/contributors/2024/12/26/tennessee-general-assembly-bail-reform/76772409007/

[2] https://gophouse.org/posts/rep-filler-radical-bail-reform-plan-threatens-public-safety

[3] https://civilrights.org/2018/07/30/more-than-100-civil-rights-digital-justice-and-community-based-organizations-raise-concerns-about-pretrial-risk-assessment/

[4] https://supreme.justia.com/cases/federal/us/156/432/

[5] https://supreme.justia.com/cases/federal/us/342/1/

[6] U.S. v. Salerno, 481 U.S. 739, 767 (1987).