You can count us among those civil liberties advocates who were expected to oppose the Tennessee Constitutional amendment being pushed by a cadre of elected officials that include Shelby County Mayor AC Wharton, Attorney General Bill Gibbons, Sheriff Mark Luttrell, Shelby County Commissioner Steve Mulroy and Shelby County Commissioners Chair Deidre Malone.

Apparently, the political upside that comes from looking tough on crime trumps the Tennessee Constitutional. These elected officials have teamed up to push an amendment to the Constitution that would allow judges to deny bail. It feels an awfully lot like taking a nuclear warhead to kill a gnat, because Constitutional amendments should be reserved for the rarest of issues, and this one feels largely feels unnecessary.

Already, it would seem that in Shelby County courts, high bails are tantamount to denying bail for defendants in the first place, because by and large the people marching before a judge in our criminal courts have no capacity to pay hefty bails.

Unlighting The Ideals

That this push was publicized a few days after U.S. President Barack Obama said in his inaugural speech: “As for our common defense, we reject as false the choice between our safety and our ideals. Our founding fathers faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’s sake.”

It seems that the push for the amendment to Tennessee Constitution seems all too rooted in fear and expediency, the same kind that our new president courageously confronts by underscoring the basic beliefs of our justice system with the announced closing of Guantanamo and secret prisons. Just as we try to get our balance following eight years of the Bush Administration’s thumbing its nose at well-accepted legal principles, our local politicians embark on a crusade whose political upsides seem too irresistible.

After all, who really cares if people charged with crimes are kept in jail until their cases are heard? Who really cares if we erode the purpose of bail to use the worst people among us for political benefit?

Paying Down

For one thing, we should care as taxpayers, but we should also care because there is such a temptation these days at the federal and local level to address safety issues by throwing more people in jail and stretching out sentences, even if it means that we have to wink at or change Constitutional guarantees and even it means that we do it while research shows that it has little effect.

It’s not too surprising that Attorney General Gibbons is in favor of this change in the Constitutional rights of Tennesseeans. He needs something to put some life into his bid for governor, and that impulse is destined to amplify now that he has announced his interest in entering the race for governor. In a race where he has as little chance for success as this one, it seems a given that he will pound his law and order themes as he criss-crosses Tennessee. In supporting the Constitutional amendment, he decried the criminal justice system’s “revolving door,” saying some defendants are released on bail the same day they are arrested.

We presume that he’d prefer for county taxpayers to foot the bill to pay for an insatiable appetite for new laws that keep people in jail longer (even though much research suggests that criminal activity is relatively age specific). For example, there’s no denying that headline-grabbing public calls for longer sentences for gun crimes pay off at the ballot box, but they also pay off in the bills that taxpayers have to pay to keep people in prison into their senior years long after they have passed the ages when they are highly unlikely to commit crimes.

Prophetic Words

It was about 25 years ago that Shelby County’s second mayor, Bill Morris, a former sheriff, rightly concluded that it was pure insanity for local government to think it could “build its way out of the crime problem” with more cells in bigger prisons when it makes more sense in economic and human terms to address the roots of crime. As he pointed out then, we could pay for all state prisoners to be sent to Ivy League universities more cheaply than paying for their yearly upkeep at state expense.

And yet, here we are, decades later, still wrestling with the symptoms rather than the problem itself. Still, today, it is more politically palatable to advocate policies that cost taxpayers $30,000 a year per prisoner than to crusade for interventions that could cost 80% less and open up options that could keep adolescents from lives of crime.

As former U.S. Attorney Veronica Coleman rightly points out, there is unquestionably different treatment of African-American juveniles in the justice system. The statistics are too compelling and the anecdotal evidence too strong to disagree with her conclusion that institutional racism is alive and well in the juvenile justice system, and that somehow, we have to invest money to move youths from paths to Juvenile Court and instead to the mainstream of our city.

Forgetting What Bail Is About

Here’s the thing about bail. It’s intended to guarantee the appearance of the defendant for court hearings and trial. That’s it. It’s not about punishment and it’s not punitive. It’s not intended to make money for the state and it shouldn’t be used by prosecutors as leverage to encourage defendants to cop a plea.

We abhor the smirk on Bernie Madoff’s face as much as anyone as he shuffles back and forth to court after bilking $50 billion out of good people in his megalomaniacal Ponzi scheme. Victims called for him to be locked up without bail, but his bail is working. He’s showing up in court, and just because we’re mad about what he’s done, bail still isn’t supposed to be punishment, because when it is set, the defendant is still is cloaked with the presumption of innocence.

We’ve heard public defenders – some who were working at the time for the future Shelby County Mayor when he was chief public defender Wharton — and defense attorneys say this for years, and despite the theatrical portrayals of the justice system on television, it is nonetheless true. Bail is only intended to make sure that the defendant shows up for trial. Period. End of sentence.

Right Signal

In a letter written by Mayor Wharton, he said: “It sends the wrong signal to our neighborhoods when they see individuals accused of grave and serious crimes continuing to walk the streets…while the judicial process proceeds at a slow pace.” He is certainly right that the judicial process proceeds at a slow pace, and all these elected officials ought to band together to fix that. There is no greater deterrent to crime than quick and certain justice.

To us, the wrong signal is amending the Constitution of our state for some transitory benefit that does nothing to strike at the seedbeds for crime in the first place. As President Obama said during his campaign for the presidency, when we give up freedoms out of fear, it only means that the terrorists and the criminals have won.

They seem close to winning in Tennessee.