Nashville Cmty. Bail Fund v. Gentry

• Decision Date: 26 October 2020
• Docket Number: Case No. 3:20-cv-00103
• Parties: The NASHVILLE COMMUNITY BAIL FUND, Plaintiff, v. Hon. Howard GENTRY, Criminal Court Clerk, in his official capacity, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

496 F.Supp.3d 1112

The NASHVILLE COMMUNITY BAIL FUND, Plaintiff,

v.Hon. Howard GENTRY, Criminal Court Clerk, in his official capacity, Defendant.

Case No. 3:20-cv-00103

United States District Court, M.D. Tennessee, Nashville Division.

Filed October 26, 2020

Andrea Woods, Brandon J. Buskey, ACLU, New York, NY, Angela Lee Bergman, Briana T. Sprick Schuster, Bass, Berry & Sims, C. Dawn Deaner, Choosing Justice Initiative, Stella Yarbrough, American Civil Liberties Union of Tennessee, Thomas H. Castelli, ACLU, Nashville, TN, Charles L. Gerstein, Civil Rights Corps, Washington, DC, for Plaintiff.

Allison L. Bussell, John W. Ayers, Metropolitan Legal Department, Kevin C. Klein, Ryan P. Loofbourrow, Klein Solomon, PLLC, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Howard Gentry, in his official capacity as Criminal Court Clerk for the Twentieth Judicial District, has filed a Second Motion to Dismiss (Doc. No. 47), to which the Nashville Community Bail Fund ("NCBF") has filed a Response (Doc. No. 50), and the Clerk has filed a Reply (Doc. No. 52). For the reasons set out herein, the motion will be denied.

I. BACKGROUND

A. Pretrial Release and Bail in Tennessee

1. Constitutional Requirements. The State of Tennessee, like the federal government and the governments of its sister states, routinely jails individuals who have been charged with, but not convicted of, crimes, pursuant to a common practice known as "pretrial detention." As the state's Supreme Court has observed, the constitutional permissibility of pretrial detention, as a general matter, is widely accepted, and the practice itself dates back to before this nation's founding, having been a feature of the pre-constitutional English courts from which early U.S. courts borrowed many of their organizing principles. State v. Burgins , 464 S.W.3d 298, 303 (Tenn. 2015). Also dating back to these pre-constitutional courts and surviving into the American experience, however, is the admonition that the government's right to pretrial detention is not absolute. Id.

For example, under the Eighth Amendment of the U.S. Constitution, the government can deny a defendant pretrial release based on his failure to pay bail—that is, a sum of money or a pledge of surety tied to his future return to court—but only if the bail amount is not "excessive," meaning, in this context, "[b]ail set at a figure higher than an amount reasonably calculated to" provide "adequate assurance that he will stand trial and submit to sentence if found guilty." Stack v. Boyle , 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951). The U.S. Constitution also forbids a court from ordering continued pretrial detention unless certain adequate procedures are observed. See Schall v. Martin , 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984).

Although the U.S. Constitution imposes certain procedural requirements and substantive limitations on the pretrial detention process, it does not mandate that every defendant have the opportunity to secure pretrial release. The Tennessee Constitution, in contrast, requires that "all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great." Tenn. Const. art. 1, § 15. "This constitutional provision grants a defendant the right to pretrial release on bail pending adjudication of criminal charges." Burgins , 464 S.W.3d at 304 (citing Swain v. State , 527 S.W.2d 119, 120 (Tenn. 1975) ). Although this right may be forfeited by a defendant's conduct, every non-capital defendant that enters the Tennessee criminal justice system at least begins with a right to establish some conditions pursuant to which he can obtain his freedom until he is, if ever, convicted.¹ See id. at 306.

2. Tennessee's Statutory Bail Process. Although state and federal constitutions create certain boundaries for the exercise of pretrial detention powers, one must look to the relevant state's statutes and rules to determine how the pretrial detention process will function in any given jurisdiction. Under Tennessee's statutes, pretrial release determinations are intended to be a multi-step process, with each determination flowing from the previous determination, until the least restrictive necessary terms of release are finally set.

For the first step, the court must consider, based on a number of statutorily dictated factors, whether to release a bailable defendant on the defendant's own recognizance or an unsecured bond. Tenn. Code Ann. § 40-11-115(b) ; Graham v. Gen. Sessions Court , 157 S.W.3d 790, 793 (Tenn. Ct. App. 2004) ("A defendant may be released pending trial upon the defendant's own recognizance if the appearance of the defendant can be reasonably assured, in light of several factors set out in the statute.... If the defendant does not qualify for release upon recognizance, the magistrate may place conditions upon release ...." (citation omitted)). Specifically, the court is directed to 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, including prior releases on recognizance or bail;

(6) The identity of responsible members of the community who will vouch for defendant's reliability;

(7) The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and

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

Tenn. Code Ann. § 40-11-115(b). If those factors support release on the defendants’ own recognizance or on an unsecured bond, the court may release him without further consideration. Id.

If, however, the statutory factors do not support release on the defendant's own recognizance or on an unsecured bond, the court moves on to the second step of the analysis. In this step, the court considers imposing conditions of release, including non-monetary conditions, that would help ensure the defendant's appearance to stand trial. The court must "impose the least onerous conditions reasonably likely to assure the defendant's appearance in court." Tenn. Code Ann. § 40-11-116(a). The conditions that may be imposed include:

(1) Releas[ing] the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court ...;

(2) Impos[ing] reasonable restrictions on the activities, movements, associations and residences of the defendant; and/or

(3) Impos[ing] any other reasonable restriction designed to assure the defendant's appearance, including, but not limited to, the deposit of bail pursuant to § 40-11-117.

Tenn. Code Ann. § 40-11-116(b). Only if the court determines that "conditions on a release on recognizance" have not been shown to reasonably ensure the defendant's appearance, may the court, "in lieu of the conditions of release set out in § 40-11-115 or § 40-11-116, require bail to be given." Tenn. Code Ann. § 40-11-117 ; see Graham , 157 S.W.3d at 793 ("If it is not shown that conditions on a release on recognizance will reasonably assure the defendant's appearance as required, the magistrate shall require that bail be given in lieu of conditions of release.").

If the court determines that it will require bail, it must then—as the third and final step in its analysis—determine the amount to be required, based on a number of statutory factors listed in Tenn. Code Ann. § 40-11-118 :

(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.

Tenn. Code Ann. § 40-11-118(b). The court is required, as the U.S. Constitution mandates, to set a bail amount "as low as the court determines is necessary to reasonably assure the appearance of the defendant as required." Tenn. Code Ann. § 40-11-118(a).

Once monetary bail is set, the defendant can pay that bail by either (1) paying the full amount in cash, (2) hiring a professional surety, typically a for-profit bail bondsman, to file a written surety to the court for the relevant amount,² (3) obtaining approval from the magistrate to file a written surety signed by two non-professional sureties, or (4) using real property as collateral. See Tenn. Code Ann. §§ 40-11-118(a), 40-11-122, 40-11-123. Once his bail is secured, the defendant is released, with the expectation that he will attend all future required court dates, as well as comply with any other conditions of his release. At a later date, "[i]f the conditions of the bail bond have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the defendant, unless the court orders otherwise, the entire sum which had been deposited." Tenn. Code Ann. §...