Attorney challenges cash bail system

Attorney John Nisbet III is representing nearly a dozen men and women in a federal lawsuit challenging the cash bail system in Cumberland County.

CROSSVILLE CHRONICLE

Posted Thursday, February 2, 2023

BY MEGAN REAGAN

“Someone has to stand up and say this isn’t right.”

That is what John Nisbet III said of what he believes to be bad practice in Cumberland County as it relates to the issue of cash bail.

Nisbet is representing nearly a dozen men and women in a federal lawsuit alleging violations of Sixth and Fourteenth amendment rights. 

All of his clients, he says, fall into three categories:

Those forced to serve a sentence before being able to make bond or appear in front of a general sessions judge;

Those without a bond; or

Those too poor to pay the cash bail amount that was set.

With cash bail, a defendant is required to pay a certain amount of money as a pledged guarantee that they will attend future court hearings. If the defendant is unable to come up with the money either personally or through a commercial bail bondsman, they can be incarcerated from their arrest until their case is resolved or dismissed in court.

While Cumberland County’s bail practices are not unique, Nisbet said there is a law on the books that allows law enforcement to write a citation rather than detaining people for days until their initial court appearance.

The law he referenced, T.C.A. 40-7-118, allows for the use of citations in lieu of continued custody, and states “a peace officer who has arrested a person for the commission of a misdemeanor … shall issue a citation to the arrested person to appear in court in lieu of continued custody. If a peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether a person is to be arrested and taken into custody or arrested and issued a citation.”

“If you read it, they ‘shall’ cite you for a misdemeanor,” he said. “Instead, what they do is take you to jail, fingerprints, and while you’re doing all that, the police officer who arrested you is going to talk to the magistrate — who may or may not have a high school education. They may write up a warrant, sign it and set a bond.”

The statute does not apply for DUI, assault and battery and other violent offenses, but Nisbet says the statute is being interpreted backward.

“You shouldn’t focus on the crime. You should focus on the person,” he said.

Nisbet said officials should follow another statute, T.C.A. 40-11-118, which lays out factors of consideration when setting a bail — like how long the person has lived in the community, their economic condition, family ties, reputation, character and mental condition, etc.

Nisbet said he frequently witnesses Cumberland County General Sessions Judge Amanda Worley, one named defendant in the lawsuit, deny bond reduction for many inmates, often stating “it is appropriate for the crime.”

“They have the wrong focus,” he said. “The statute says focus on the person.”

Nisbet said the bad practices, despite the statutes in place, have a lot to do with what society thinks of those who might commit a crime.

“We feel like those who commit crimes are somehow morally deficient and need to be punished,” he said.

Much of a local jail’s capacity is riddled with those awaiting trial. Nisbet said this creates a punishment effect before someone has had their actual day in court to dispute the charges brought against them before a jury of their peers.

The Prison Policy Initiative, in 2016, completed a study that indicated that much of the local jail systems’ populations are so large because of the cash bail system. With this system in place, the constitutional principle of innocent until proven guilty only really applies to the economically well-off, according to the researchers.

“We find that most people who are unable to meet bail fall within the poorest third of society,” the study said. “Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages.”

According to the December 2022 jail summary report from the Tennessee Department of Corrections, just over 50% of the male inmate population in Cumberland County is being held pre-trial. The women’s population sits at nearly 60% held pre-trial.

Nisbet said an issue also arises when those who cannot make bail essentially serve a sentence before ever making it to trial. Many of these people plead guilty to charges that could possibly be fought because of the coercive system.

“I’m not going to change the world. I’m not going to change Cumberland County,” Nisbet said. “But someone has to stand up and say this isn’t right. The laws are there. But no one is using it.”