This article is from Tennessee Lookout

Senate Judiciary Chairman Todd Gardenhire blasted a constitutional amendment to the state’s bail law Tuesday, saying it will pack county jails and put local governments in a financial bind.

Senators passed the measure 6-3 but not before the Chattanooga Republican dropped the hammer. The resolution would amend the Constitution by expanding the list of crimes in which judges have discretion to set bail. Under current law, judges have the authority to decline bail only for capital murder.

Gardenhire, who was ill early in the session, prefaced his comments by challenging House leaders who might question whether he is “soft on crime” and noted he was criticized last year. House Speaker Cameron Sexton is sponsoring the House version of the bill and has been outspoken about the need to put constraints on Shelby County and Memphis.

The bill is designed to target Shelby County, Gardenhire said, but he noted he’s worried about “unintended consequences,” especially for rural counties that might have to raise taxes to expand or build new jails.

“My concern is what judge running for re-election is not going to put somebody away for 100% of the time?” Gardenhire said.

Sarcastically, he noted a group of lawmakers had the “wisdom” in a 2023 special session on public safety to divert $50 million from a prison construction fund to nonprofit groups working on mental health. It costs about $600 million to build a state prison.

During debate, Senate Majority Leader Jack Johnson, the bill’s sponsor, barely answered questions about jail and prison crowding by saying he hopes judges will rarely use the discretion they’re given to deny bail, thus tamping down costs.

Yet the measure would enable judges to deny bail on 24 new offenses, mainly violent ones in which 100% of sentences must be served, and another 16 offenses in which 85% of the sentence is mandatory.

“There’s some real expenses the state could probably have to pick up, and I don’t think anybody has the guts to do it,” Gardenhire said.

The bail industry, which is lobbying against the measure, contends Shelby County would wind up with a 320-jail bed shortage and Hamilton County would be 1,249 beds short if this measure is placed in the Tennessee Constitution.

The resolution would have to pass a constitutional majority in this General Assembly and a two-thirds vote in the 114th General Assembly before being placed on the next ballot involving a gubernatorial race, where it must receive a majority vote of those participating in the governor’s election.

Johnson argued that when the state Constitution was ratified, capital offenses included more than first-degree murder.

“Since then, it has denied judges discretion to deny bail for the worst offenses,” Johnson said, including repeat offenders.

The bail industry, though, contends the state doesn’t have enough information to determine whether expanding the list of offenses will work.

Jeff Clayton, executive director of the American Bail Coalition, told lawmakers Tennessee is an “ancient rule state,” using the bail system that has been in place for 809 years.

“Preserving the presumption of innocence is important,” Clayton said.

Likewise, Democratic Sen. London Lamar told the committee “it’s dangerous to mess with the Constitution” and noted lawmakers probably will have to repair their error.

“The system is working right now,” the Memphis Democrat said. “Judges can set extreme limits on bail.”

Lamar said 37% of the Shelby County jail population of 2,300 has no bail or bail amounts of more than $500,000, making it difficult for people to get out of jail while awaiting court dates.

Josh Spickler, executive director of Just City Memphis, told the Lookout that 612 people were being held Tuesday in the Shelby County jail without bail.

“When it comes to the scourge of violent crime and repeat offenders, bail is not the problem, and amending the state Constitution is not the solution,” Spickler said in a statement.

However, House Speaker Sexton, who is driving the constitutional amendment, recently said some people “don’t want to admit there’s crime happening” in the Memphis area.

Based on TBI figures, he told reporters if Memphis is removed from the state’s crime figures for 2022 and 2023, murders, rapes, aggravated assaults, robberies and thefts are down. But in Memphis alone during that time frame, murders are up 50%, rapes 5% and aggravated assaults 3% while robberies are down 8% and thefts are down 10%.

“We have to do a better job of getting the judicial branch in Shelby County-Memphis on board with what the other counties are doing and what the other DAs are doing. It shows what we’re doing is working,” Sexton said. “It shows the prosecution and what’s happening in Memphis with the judges is not working, and that’s what we’re fighting right now.”

Sexton did not provide overall crime figures for the state. 

The Tennessee Lookout found the number of violent crimes in which a gun was used started increasing in 2013 when the Legislature passed the so-called “guns in trunks” law, then escalated again in 2019 when lawmakers approved the permitless gun carry law, rising to about 17,000 in 2021 before dipping to about 16,000 in 2022.

_ Sam Stockard