Tennesseans overwhelmingly approved Amendment 1 on Tuesday, supporting changes to the state Constitution on how judges determine the release of defendants ahead of trial.
The amendment, which passed with more than two-thirds of votes in support, expands the types of crimes for which a judge can deny bail. With its passage, judges will be able to require pre-trial detention for those charged with more than 70 crimes, an option currently limited to people facing a charge of first-degree murder.
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The amendment, supported by Republican leadership in the Tennessee legislature, was touted as a public safety measure that would give judges more discretion in certain serious cases and reduces the risk that defendants might endanger others while awaiting trial. Those who opposed the amendment argued it could infringe on due process rights or further strain county jails and court systems that face overcrowding and funding shortfalls.
For an amendment to pass, it must receive more “yes” votes than “no” votes — and it must have more “yes” votes than half the number of votes cast in the governor’s race.
Expanded list of no-bail crimes
The crimes that defendants could be denied bail for under the new amendment include first- and second-degree murder, aggravated rape, aggravated rape of a child, grave torture, acts of terrorism and any crime that requires a defendant to serve at least 85% of their sentence. That last category includes types of vehicular homicide, voluntary manslaughter and some serious and repeated drug offenses. Senate leadership shared a list of 71 total offenses, and Nashville-based research nonprofit ThinkTennessee estimated the number of applicable crimes could exceed 140.
Under Amendment #1, defendants are not bailable for those crimes when “proof is evident or the presumption great.” Judges still can choose to grant bail and they must record a reason for granting or denying bail.
As it stands, judges can deter bail release by setting a high bail amount. Those supporting the amendment argued the current system favors defendants with access to greater financial resources who could make bigger bail payments even when they pose a risk to others.
Some lawmakers who opposed the amendment were concerned that it instructed judges to deny bail as the default, rather than provide more options. Sen. Jack Johnson, R-Franklin, who sponsored the amendment legislation, disagreed with that reading. He said he anticipated that the types of cases that bail was denied for would be rare. As a result, he did not foresee a meaningful increase in costs for Tennessee county governments.
The amendment had support from the Tennessee Sheriffs’ Association and the Tennessee District Attorneys General Conference. The ACLU of Tennessee opposed Amendment 1.
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