Bipartisan Tennessee proposal would ask voters to expand judges’ ability to deny bail

A bipartisan group of Tennessee lawmakers on Friday announced their support for a proposed constitutional amendment that would give judges more latitude to hold someone without bail before trial for certain violent criminal charges.

House Speaker Cameron Sexton made the announcement at city hall in Memphis alongside the city’s mayor, police chief, the local district attorney and state lawmakers of both parties. The proposal isn’t without its critics, however, as some advocates said it wouldn’t solve issues around crime in the Memphis area or across the state.

Sexton said the Tennessee Constitution currently only allows judges to withhold bail for charges that could be punishable by death, which generally means first-degree murder.

Sexton, a Crossville Republican, said the amendment would expand judges’ discretion to deny bail to more violent crimes — such as second-degree murder and aggravated kidnapping — and require judges to explain their reasons for denying or allowing for bail. The proposal is still being drafted, Sexton said.

The issue would not be on the ballot until 2026 at the earliest under Tennessee’s lengthy constitutional amendment process. Proposed changes must pass by a majority in both chambers during one two-year General Assembly, and then pass by at least two-thirds of the vote in the next. The amendment would then go before the voters in the year of the next gubernatorial election.

“We don’t have the tools to give — due to that limiting constitutional aspect — the judges and the DAs the capability of denying bail on those violent criminals,” Sexton said at the news conference.

The idea marks an area of agreement between a contingent of legislative Democrats — all of whom were from the Memphis area at the news conference — and Republicans on the topic of criminal justice, which has divided the two parties on recent major proposals. Many other Republican priorities on crime, such as a bill to toughen sentencing for certain juveniles, have been met with Democratic opposition.

“This is reflective of the effort, the desire, the will — important, the political will — to make some good happen in our state, and to change the trajectory of not just Memphis … but across the entire state of Tennessee,” said Rep. Antonio Parkinson, a Memphis Democrat.

Not all legislative Democrats, including those from the Memphis area, were on board. Memphis Rep. Justin Pearson, known for being one of two state lawmakers expelled last year for a protest on the House floor calling for gun control, deemed the proposal a “useless amendment related to bail that doesn’t address the devastation of violence in our communities.” The Memphis lawmaker called for his GOP peers to repeal permitless carry of guns in Tennessee and to create and fund an office of violence prevention.

Some advocacy groups chimed in similarly in opposition.

“This is not ‘bail reform’ — it’s an extremist attack on constitutional rights and fundamental American values that are supposed to be based on being innocent until proven guilty,” Stand for Children Tennessee, a group that advocates for issues such as racial justice, said on social media. “It will not fix any problem that exists, and it will not make us safer.”

According to a 2022 policy brief by the National Conference of State Legislatures, more than 20 states have amended their constitutional right to bail to expand pretrial detention in various ways. Another 19 or so states have constitutional right to bail provisions, except for in capital cases eligible for the death penalty. The remaining states generally have statutes that allow for some pretrial detention beyond capital cases, the brief says.

In the U.S. Constitution, the Eighth Amendment bans excessive bail or fines.