Bail Reform Act Lawsuits

April, 2010

Being sued is nothing new for most counties and sheriffs. However, a new kind of lawsuit is challenging the way sheriffs, General Sessions judges, and judicial commissioners may have operated for years. The statute underlying the new lawsuits is nothing new, but counties across the State of Tennessee are being challenged in the way they set bonds for arrestees every day.

The United States Constitution’s Eighth Amendment prohibition on cruel and unusual punishment gives arrestees the right to reasonable bail. Excessive bail runs afoul of the Constitution. Tennessee Code Annotated §40-11-102 provides that, before trial, all defendants “shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption is great.” Tennessee Code Annotated § 40-11-105 provides that “when the defendant has been arrested or held to answer for any bailable offense, the defendant is entitled to be admitted to bail by the committing magistrate, by any judge of the circuit or criminal court, or by the clerk of any circuit or criminal court…” The clerk may only set the bail when the judge is not present in the court and the clerk reasonably believes that the judge will not be present within 3 hours after the defendant has been committed to the jail following arrest. However, if the circuit or criminal court clerk sets the bail, subsection (c) of § 40-11-105 limits the amounts available to the clerk to $1,000 for a misdemeanor, $10,000 for a felony that does not involve a crime committed against a person; $50,000 for a felony that involves crime committed against a person, and $100,000 for any form of homicide.

In most counties, especially small counties, the General Sessions Judge sets bail for arrestees. However, judicial commissioners may also be appointed by the county, and those individuals (who most likely are not attorneys) are also authorized to set bail. The lawsuits being filed against Tennessee counties allege that bail is being set according to a pre-set bond schedule, which is based solely on the criminal charge. However, TN Code Annotated § 40-11-118(b) sets out the factors to be considered when setting bail, and they are:

The basis of the lawsuits being filed against Tennessee counties is an allegation that counties are instituting and approving of a system where bail is set based on something other than the statutory elements or an individualized determination of the need for bail. The lawsuits claim that, when bail is set based on a pre-set schedule based on the nature of the charges, the arrestee’s Constitutional rights are being violated. The lawsuits also claim that county systems are designed to always require monetary bail, as opposed to an individualized determination that may support an arrestee being released on his/her own recognizance.

So, what is a county to do? First, it seems that a county needs to ensure that arrestees are having a bond set within a reasonable time after arrest. Unfortunately, no state statute dictates when bail must be set, but certain cases suggest that bail must be set within 48 hours of arrest. Nonetheless, the statute does require an individual evaluation of the arrestee’s particular situation, and General Sessions judges, judicial commissioners, and clerks setting bail should make a determination of bail amount based on an individualized questioning of the arrestee. The nature of the charge is but one factor to consider.

Of course, this individualized determination becomes a little more complicated when the arrestee is charged with domestic violence, but counties would be wise to train judges or judicial commissioners to keep a written record of the individualized assessment made of each arrestee admitted to bail. Judges and judicial commissioners must also be trained to consider the factors listed above, as well as those listed in Tennessee Code Annotated § 40-11-150 for domestic violence charges, which include whether the defendant is a threat to the alleged victim or a threat to public safety.

While General Sessions judges and judicial commissioners enjoy judicial immunity, counties do not, and General Sessions judges, any appointed judicial commissioners, and the clerks are employees of the county. Therefore, a county should limit its liability by providing training to judicial commissioners and judges on the statutory factors to consider.

Counties should also consider the recordkeeping that is required of judges and judicial commissioners in order to prove that an individualized determination was actually made on each bail setting. Appropriate policies and training are usually a county’s best defense, along with appropriate record keeping.

Brandon O. Gibson is a partner in Pentecost & Glenn, PLLC in Jackson, TN. Gibson and her firm represent counties, county officials, and county employees in all areas of governmental tort and civil rights claims. She can be reached at