Bail Industry Gears Up For Battle Over Next Tennessee Constitutional Amendment

Members of the bail bonds industry are gearing up for a fight over a proposed constitutional amendment that would allow judges to deny bail to some offenders.

Photo Credit: John Partipilo

By Sam Stockard [The Tennessee Lookout -CC BY-NC-ND 4.0] –

Tennessee’s top lawmakers and the bail industry are on a collision course in 2025 as the Legislature renews debate on a constitutional amendment designed to keep more criminal suspects in jail until they go to court.

Lawmakers passed a resolution this year increasing the number of offenses for which judges can decline to set bail for pre-trial release, adding an array of charges to first-degree murder, including violent offenses such as aggravated rape and torture. Those would be added to a list of felonies such as burglary set in a 2023 truth-in-sentencing law. 

Both chambers of the Legislature will have to pass the same resolution by a two-thirds vote in the upcoming 114th General Assembly before it can go on the next gubernatorial ballot where it must receive one more vote than a majority voting in the gubernatorial race in order to change the state Constitution. 

The resolution is sponsored by Senate Majority Leader Jack Johnson, a Franklin Republican, but also drew strong support this year from House Speaker Cameron Sexton.

The bail industry will try to fend off the resolution next year after coming up short in the 2024 session, taking the stance that changing the state Constitution could eliminate some 3,000 bail agents and 300 small businesses that bond people out of jail and guarantee their return to court, bringing them in if they fail to show. The industry considers the constitutional amendment a major government expansion that could wind up costing Tennesseans hundreds of millions of dollars to build jail and prison space to house defendants while they await court dates.

Sexton, a Crossville Republican, was adamant about the need to let judges decline bail for a wider array of criminal offenses as lawmakers took a tougher stance with law-and-order-related bills this year.

The House speaker consistently points toward violent crime in Memphis as a reason to cut down on the number of bailable offenses.

“It isn’t a surprise that after the failed attempt by the bail association to kill the constitutional amendment in the House that they would be worried,” Sexton said in a statement. “Tennesseans want safer communities and to hold criminals accountable. Unfortunately some bad actors in the bail industry let criminals out on bond by paying as low as 2% of the bail, instead of 10%. Group that with soft on crime judges across the state and we are seeing a revolving door of violent criminals continuing to reoffend. I think it’s past time we look at every option at our disposal, including reforming the way we do bail, to keep violent criminals incapacitated.”

Republican Sen. Todd Gardenhire was one of the few lawmakers who balked at the constitutional amendment this year, primarily arguing it would be costly for local governments.

“It’s not the bail bondsman’s problem. It’s the judges that make the problem,” Gardenhire said. “They’re the ones that set the bail. But it’s easier to beat up on a bail bondsman than it is a judge.”

Gardenhire contends it “sounds great” to deny more defendants bail to keep them from re-offending before their court date, and he notes some offenders shouldn’t be released.

But he says, to make room for a longer list of defendants, jailers will have to release inmates serving time or awaiting trial on minor offenses. Otherwise, local governments will have to construct more jail space, which can cost $400 million to $500 million for a single facility, he says.

In addition to the expense, building jails can cause an uproar in communities because people don’t want them built near their homes, and in some instances, rural communities might not have the personnel to operate them.

“It could be a financial disaster to some of these smaller counties, or distressed counties, that have to add on to their current jails, and they don’t have the money to do it,” said Gardenhire, a Chattanooga Republican who chairs the Senate Judiciary Committee.

In addition, some lawmakers raised questions this year about how the constitutional amendment will be worded if it makes its way to the 2026 ballot. They pointed out that it won’t detail all offenses for which bail could be denied.

The resolution says, “All prisoners shall be bailable by sufficient sureties unless for the following when the proof is evident or the presumption great: a capital offense, an act of terrorism, second-degree murder, aggravated rape of a child, aggravated rape, grave torture, and any other offense for which, as of Nov. 3, 2026, a defendant, if convicted, could not be released prior to the expiration of at least 85% of the entire sentence imposed.” 

The final category involves about 20 crimes for which offenders will have to serve 85% to 100% of sentences without parole under a measure approved by the Legislature in 2023. Many of those are violent offenses, but they include other offenses such as burglary.

Gov. Bill Lee, who allowed the bill to become law last year without his signature, said at the time, “Widespread evidence suggests that this policy will result in more victims, higher recidivism, increased crime and prison overcrowding, all with an increased cost to taxpayers.”

The truth-in-sentencing law was estimated to come with a $25 million annual cost.

But Speaker Sexton noted, “If we need to build more prisons, we can.”

Democratic Rep. John Ray Clemmons of Nashville contends the state’s criminal justice system is “inherently unfair” for many people, and he points out the constitutional amendment will only “exacerbate” the situation.

“You can’t say ‘everyone is innocent until proven guilty’ out of one side of your pie hole while denying bail for a select list of crimes out of the other,” Clemmons, chairman of the House Democratic Caucus, said in a statement to the Tennessee Lookout.

Clemmons argues that the state Supreme Court for years has considered access to bail a “fundamental constitutional right” and part of the foundation of the judicial system. He further argues supporters of the amendment aren’t making communities safer but are “putting more public money in the pockets of private prisons.”

Four of Tennessee’s 13 prisons are operated by CoreCivic, which has come under fire for a litany of problems, mainly the failure to supervise inmates. The Tennessee Department of Correction is set to pay the private operator $7 million more next fiscal year despite an audit that showed persistent personnel shortages. The budget increase bumped CoreCivic’s total payout to $233 million annually.

Political spending

The State Association of Bail Agents has spent $2.1 million lobbying and political donations to state lawmakers since 2009.

The spending ranks no. 65 in the Lookout’s Cash for Clout political spending database, which pulls from publicly filed campaign finance and lobbying reports.

But, the group’s spending isn’t nearly as high as CoreCivic, which has spent $3.7 million over the same period, ranking no. 25.

CoreCivic has also donated more to Sexton and his political action committee. The private prison operator has donated $46,000 to the speaker since his first election in 2010. The bail association has given him $15,500.

Johnson has received $9,000 from CoreCivic and $7,000 from the bail association.

Adam Friedman contributed to this report. 

About the Author: Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state’s best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association. Follow Stockard on Twitter @StockardSam