The presumption of innocence – a right guaranteed all Americans under the U.S. Constitution – is under threat by a proposed amendment to the Tennessee Constitution on the ballot in the November midterms.
In the American justice system, citizens are guaranteed the presumption of innocence from arrest through trial. The burden to prove a citizen guilty beyond a reasonable doubt rests solely with the prosecution, and a jury must unanimously conclude the state has met its burden before removing the presumption of innocence.
It’s a high bar for good reason: Wrongful arrests have been documented throughout our country’s 250-year history, including innocent citizens put to death. The standard for obtaining a criminal charge against a citizen is low – requiring just enough “evidence” to suggest a person “probably” committed the crime alleged.
And the consequences of an arrest are enormous, from the loss of jobs and housing to the stripping of parental rights.
That’s why the American justice system has long allowed those accused but not yet convicted to go free pending trial with only enough pretrial conditions to guarantee the accused shows up for court and does not pose a danger to the community.
The most common form of pretrial conditions in Tennessee is the setting of cash bail.
Under the Tennessee Constitution, a judge cannot deny bail to any accused citizen except in cases of capital murder; even then, the judge decides whether to grant bail and, if so, how much.
But Amendment 1 on the Nov. 3 ballot would strip a wide swath of accused citizens of their rights to pretrial freedom and the presumption of innocence that undergirds that right.
Amendment 1 seeks to change the Tennessee Constitution to allow judges to jail citizens pending trial without bail in a laundry list of cases, including aggravated assault, drug dealing, criminally negligent homicide and various robbery, burglary and arson offenses.
It would give elected judges unchecked power in denying bail without meeting the legal requirements currently set out in state law, including proof that an accused poses an actual threat to the public.
And it would further increase the wealth gap that plagues our current system of cash bail, with those who have the money to post high bonds going free while the poor would stay jailed.
Amendment 1 would also cost taxpayers.
With large numbers of people being jailed without bail, jails, already overburdened across the state, will become even more so. Unable to work, those held without bail will be unable to afford to hire attorneys, and that will increase the caseload – and the budget – for public defenders. Parents jailed pending trial often lose custody of their children, sending more children into foster care.
Proponents of Amendment 1 contend it will give judges more tools to hold dangerous individuals behind bars, but judges don’t need more tools. They already have plenty in Tennessee – from cash bail to GPS monitoring to alcohol and drug detection systems – and they’ve never been hesitant to use them. In fact, the lion’s share of arrestees in Tennessee typically must pay cash bail and monitoring fees just to exercise their right to go free pending trial.
There’s an old saying: if it ain’t broke, don’t fix it. Tennessee’s Constitution is not broken, and voters should not vote to “fix” it with Amendment 1.
Jamie Satterfield is an investigative journalist covering crime, courts, and the stories behind the headlines. Jamie Satterfield: Digging deeper. Finding the story behind the story every week. Read more from Jamie and follow her work on Substack.
