A Memphis, Tennessee, criminal justice advocacy group, Just City, reached a deal with local officials in 2022 to soften cash bail rules at local jails, but this year, the conservative state Legislature passed a law to force a return to the old cash bail system, and now Just City is suing to save the deal.

The law passed by the Republican-controlled Tennessee Legislature this spring says judges can't consider a defendant's ability to pay bail. That's a direct response to a bail system implemented in the Memphis area in 2022 and 2023 that explicitly requires judges and judicial commissioners to consider the arrestee's ability to pay. 

Just City argued in its Wednesday federal lawsuit that the new state law violates the 14th Amendment of the U.S. Constitution, which requires equal protection under the law.

"[H.B. 1719] is contrary to decades of constitutional precedent requiring courts to consider ability to pay as a matter of fundamental fairness," Just City wrote in its complaint. "The law mandates arbitrariness by requiring judges to ignore the consequences of their bail orders and disregard whether arrestees will be released or detained."

The American Civil Liberties Union is representing Just City in its lawsuit and has been involved in earlier discussions over bail in the Memphis area.

The Wednesday lawsuit seeks a court declaration that H.B. 1719 violates the 14th Amendment, a court order requiring local officials to consider an arrestee's ability to pay, and a court order awarding attorney fees.

"We have to focus on improving this system, yes, but not destroying this system. And that's what bills like this one will do, because they will just waive presumption of innocence," Josh Spickler, a former public defender and current executive director of Just City, told Law360 Wednesday.

"They will chip away at a person's fundamental rights when they are arrested and charged with a crime, and they will widen the gap between people with money and people without money who go through this criminal legal system," Spickler added.

State Sen. Brent Taylor, R-Memphis, sponsored the Senate version of H.B. 1719.

"Them filing that lawsuit was as predictable as finding a mullet at a tractor pull," Taylor told Law360 Wednesday. "And so I'm not surprised by them filing the lawsuit, and I believe at the end of the day, the court will uphold what the General Assembly did."

The suit names as defendants the top administrator of the local jail system, Shelby County Sheriff Floyd Bonner Jr., as well as several officials involved in setting jail bonds, presiding Shelby County General Sessions Criminal Court Judge Bill Anderson Jr. and 14 judicial commissioners.

A spokesperson for the sheriff's office, Lt. Joseph Fox, told Law360 the office can't comment on pending litigation.

Judge Anderson didn't immediately respond to a request for comment.

Jurisdictions around the United States are debating the future of cash bail. For instance, the American Bar Association has lobbied for years against the practice.

"A money bail system that deprives defendants of their liberty without individualized assessments of their personal and financial circumstances violates the Constitution," the ABA wrote in a 2019 amicus brief to the U.S. Supreme Court.

Last year, the Illinois Supreme Court gave judicial approval to a law that eliminated cash bail, making Illinois the first state in the nation to do away with the practice. 

The fight in Memphis also reflects a political divide in many parts of the country: Memphis is a Democratic-leaning city with liberal leadership, while the Republican Party controls the Tennessee Legislature.

Policy clashes between the city leadership and the state Legislature have taken place frequently in recent years, with Republican legislatures often seeking to quash left-leaning policy changes in Memphis and cities like it.

Big Jails in a City With a High Crime Rate

Shelby County encompasses Memphis and several of its major suburbs, and the county government runs the major jails in the area: a big jail for men, and a smaller jail for women. According to the Shelby County Sheriff's Office website, the average daily census for the two facilities is about 2,500 people, and yearly bookings average 56,000.

As thousands of people come and go from the jails each year, some people got stuck.

The problem has persisted for years. In 1998, for instance, local newspaper The Commercial Appeal published the story of Zygmunt "Ziggie" Karon, an immigrant from Poland who had severe psychiatric problems and repeatedly landed in jail.

On his last stay behind bars, he died of a heart attack at age 64. "He had been in the Shelby County Jail for 10 weeks that time, unable to make $100 bail on a trespass charge," the newspaper reported.

On Dec. 1, 2021, Just City, the ACLU and attorney Alexander C. Wharton sent a demand letter to local authorities in Shelby County, telling them that they believed the county's bail practices were unconstitutional.

The letter says that under the law, virtually all criminal suspects have the right to conditional release.

"Under Shelby County's current pretrial bail system, however, hundreds of people remain needlessly detained on any given day because they are financially incapable of posting bail," they wrote.

"But a person's financial inability to post bail is not a valid justification for their continued detention, especially where that person poses no risk of harm to the community or of willful flight," they added.

The demand letter led to extensive discussions among the parties involved. On June 9, the county government, the ACLU, Just City and other advocates entered into a memorandum of agreement.

That agreement laid out a step-by-step process to evaluate the arrestee's ability to pay bail and to use that information to determine conditions for release.

To start, the local pretrial services office would interview all arrestees and calculate their ability to pay. The interview would be based on a calculator from the Vera Institute, a criminal justice reform organization. The calculator-based interview asks questions such as "How much do you earn?" and "What benefits do you receive?" to cover Social Security and other government benefits.

The agreement also required administrative steps to ensure that indigent defendants could get a public defender to represent them at a bail hearing.

A judicial commissioner would then evaluate the arrestee for release. The first step: determining whether a no-money release was feasible. Judicial commissioners were still authorized to set a money bail.

If the arrestee failed to pay the money bail within 72 hours, they would get a bond hearing before a judge, in a new bond hearing courtroom open to the public.

Judges created a standing bail order to implement the changes, and local officials began running the new system in February 2023.

Tragic Stories Become Part of Cash Bail Debate

The loosening of cash bail requirements wasn't universally accepted in Memphis, a city that has struggled for years with very high crime rates. The city saw nearly 400 homicides in 2023, a record number.

Local media have reported high-profile bail horror stories like the case of 18-year-old Jaylen Lobley.

On March 2, authorities charged Lobley with stealing two cars and possessing a Glock pistol with a 30-cartridge extended magazine and a "switch" device that effectively converted the pistol into a machine gun.

Local media reported that, after a bond hearing, Lobley was released on his own recognizance.

Then, just over one month later, on April 12, Lobley and a 17-year-old got into a shootout with Memphis police officers. Lobley was shot and killed.

Officer Joseph McKinney was also shot and killed. The local district attorney's office later said shots from another officer likely killed McKinney.

"Had we not had that ability-to-pay calculator, perhaps we could have had a different outcome," Taylor, the key state senator who backed H.B. 1719, told a local TV station.

Weeks later, on May 1, Republican governor Bill Lee signed H.B. 1719 into law.

The new law forced Shelby County officials to immediately end the system of evaluating an arrestee's ability to pay, said Spickler, the leader of Just City.

Spickler said he doesn't believe the decision to grant no-cash bail in the Lobley case was wrong, and he said society shouldn't make policy based on tragic cases like this.

He said the group's data show that the rearrest rate within 90 days was 10.5% under the old cash bail system and dropped to 9.3% under the new system considering the ability to pay.

For violent crimes, the rearrest rate dropped from 2.1% to 1.5%.

"Ninety-nine percent of the time, the decision does not result in tragedy. We succeed way, way, way more often than we fail with these types of risk-based decisions, with pretrial detention or release," Spickler said.

"And so I would say that the family that is suffering because of Jaylen Lobley's involvement, it deserves all of the support and sympathy that this community can muster because the system failed them," he added. "But we cannot make policy — we cannot adjust policy based on one failure out of 100. We have to focus on making it less likely that that happens again."

For his part, Taylor told Law360 he doesn't see the lawsuit filed this week as a bad thing.

"Look, there was no ability-to-pay calculator in the statute or in the Constitution. It was made up out of whole cloth," he said.

"And so this will give the judge the opportunity to review it. The restorative justice schemers are trying their best to save what they negotiated with a weak, acquiescent Shelby County when they agreed to that, that standing bail order," Taylor said.

Just City is represented by Trisha Trigilio, Julian Clark, Ashika Verriest and Brandon Buskey of the American Civil Liberties Union Foundation Criminal Law Reform Project, Craig S. Waldman, David Elbaum and Jared Quigley of Simpson Thacher & Bartlett LLP and Stella Yarbrough of the American Civil Liberties Union Foundation of Tennessee.

Counsel information for Shelby County Sheriff Floyd Bonner Jr. and other defendants wasn't immediately available.

The case is Just City Inc. v. Floyd Bonner Jr. et al., case number 2:24-cv-02540, in the U.S. District Court for the Western District of Tennessee.

--Additional reporting by Marco Poggio. Editing by Jay Jackson Jr.