A proposed constitutional amendment that would allow judges to deny bail for certain crimes passed the Tennessee Senate. (Photo: John Partipilo/Tennessee Lookout)
A proposed amendment to Tennessee’s constitution that would strip people charged with certain crimes of their right to bail is one step closer to landing on voters’ next gubernatorial ballot.
The Tennessee Senate approved a resolution 23-6 to pose the matter to voters. The amendment still needs approval from two-thirds of the House to be placed on the Nov. 3, 2026 ballot. The amendment would then require a majority vote from those participating in the gubernatorial election to become law.
The resolution, sponsored by Franklin Republican Sen. Jack Johnson, would remove a defendant’s right to pretrial bail “when the proof is evident or the presumption great” for 73 felony crimes.
Such crimes include second-degree murder, acts of terrorism, aggravated rape of a child, vehicular homicide, aggravated burglary, and the third felony offense of manufacture, sale or delivery of a controlled substance, among others for which those convicted must serve at least 85% of their sentence in Tennessee.
Those who voted against the resolution warned that should the amendment ultimately be approved by voters, it will be costly in terms of both individual liberty and funding for incarceration.
Senate Judiciary Chair Todd Gardenhire comes down hard on constitutional bail bill
Tennessee’s constitution currently enshrines the right to bail for all prisoners except for capital offenses (functionally, first degree murder, according to Johnson). But judges do have authority to set prohibitively high bail for serious crimes.
“Currently dangerous criminals with financial resources can buy their way out of jail, while indigent defendants accused of lesser crimes remain detained simply because they cannot afford bail,” Johnson said Monday.
The proposed amendment “does not eliminate bail,” Johnson said, but gives judges discretion to hold defendants pretrial for “heinous crimes.”
Language requiring evident proof of guilt and great presumption protects against misuse of judicial discretion, Johnson said, pointing to other states with preventative detention laws as examples.
Sen. Jeff Yarbro, a Nashville Democrat, disagreed. Other states’ changes to pretrial detention were not so broad, he said, and pretrial detention without bail under federal law is part of a lengthier, more complicated pretrial process than what Tennessee currently has in place.
“(The proposed amendment) doesn’t say that bail may be denied, it says there’s no right to bail in those circumstances,” Yarbro said.
Johnson City Republican Sen. Rusty Crowe and Tullahoma Republican Sen. Janice Bowling flipped their votes Monday, allowing the resolution to narrowly exceed the 22-vote threshold it needed to pass. They said they concluded voters should have the opportunity to decide.
Opponents warn of cost, inequity in application
Sen. Todd Gardenhire, a Chattanooga Republican, said he did not object to the premise of the proposal, but the cost of implementation was never fully addressed. This concern was echoed by members of the Senate’s Democratic caucus.
Memphis Democratic Sen. London Lamar said the cost of high incarceration is already straining government resources, and increased property taxes would likely result if voters approve the amendment.
“The ability to access bail is one of the fundamental rights that we give citizens in this state, because of the understanding you are innocent until proven guilty,” she said.
Lamar added that the ballot would not list all 73 of the crimes for which a person could be held without bail under this amendment. Giving judges discretion, she said, would also result in inequity based on where a defendant lives. A judge in one district may decide to take bail off the table for certain crimes, but a judge in another district may continue to set pretrial release on bail.
“It’s a disservice to the voters who will be voting on this piece of legislation because it’s not telling them the accurate cost and the consequences,” Lamar said.
Nashville Democratic Sen. Heidi Campbell voiced concern about the potential change paired with the “ambiguous nature” of the state’s definition of terrorism: “the unlawful use of force or violence against persons or property to intimidate or coerce government.”
Yarbro said that the language addressing bail in Tennessee’s constitution is drawn from the example of North Carolina and Pennsylvania, home to people who were held by the British government due to their religious beliefs.
“It was fundamental to what they thought government could and couldn’t do to say that the say-so of … a judge and a prosecutor isn’t enough for someone to give up their liberty,” he said.
Johnson says taxpayer money is secondary to ‘public safety’
In response to his colleagues’ concerns, Johnson contended that the proposed amendment isn’t anticipated to result in many more people being denied bail and incarcerated pretrial.
But even if it did cause incarceration to spike and costs to rise with it, “our number one job up here is public safety,” he said.
The proposed amendment has seen support from the Tennessee Sheriff’s Association and the Tennessee District Attorney Generals Conference.
Tenth District Attorney General Stephen Crump — also the conference’s executive director — told the Senate Judiciary Committee in February that “Tennessee’s district attorneys believe this is the singular most important bill to public safety” in the last 11 years.
Johnson said if the state ends up needing to appropriate more money to “empower our partners in law enforcement, the district attorneys and our judicial system, with the tools they need,” so be it.
“We’re not going to amend our constitution today,” he said. “We’re going to let our constituents, the people of Tennessee, decide if they want our judges to be empowered to see these most violent people off the streets when they’re convicted — or rather, when they’re charged — with a crime, pretrial.”
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