To get a sense of how a new bail system works in Shelby County, look no further than the cases of Ladarius Marion and Julius Freeman.

The two are both facing multiple charges in connection with a Feb. 19 shooting at Live Lounge in Whitehaven that left one person dead and at least 10 injured. Marion’s charges include second-degree murder, while Freeman’s include facilitation of second-degree murder. 

About one-third of cases heard in a month released with no bail

Bails for Marion and Freeman were originally set at $800,000 and $150,000, respectively. Both were reduced to $25,000 during a bail hearing in General Sessions Criminal Court Division 11 Judge Karen Massey’s courtroom, drops of 97% and 83%, respectively.

Bail hearing procedures in Shelby County are now conducted under a New Standing Bail Order implemented Feb. 15 that factors in a defendant’s financial condition when setting bail and guarantees a bail hearing within 72 hours of arrest. The order came about as part of an agreement between Shelby County government and national and local advocacy groups, including the American Civil Liberties Union and Just City.

New bail hearing procedures in Shelby County are intended to prevent people accused of crimes from being held in jail unnecessarily, fulfilling a constitutional right that bail shouldn’t be punitive. But some say more transparency and stricter bail schedules are needed to protect the community.

The new system levels the playing field for defendants before damage is done through unjust incarceration, according to Josh Spickler, Just City’s executive director.

“After about three days — really shorter than that — in the jail, the damage is done,” Spickler said. “You’ve lost your job, you’ve lost your child, you’ve lost your seat in a classroom, your family is fractured. So a week or two weeks before you have a bail hearing is not constitutional.”

Under the bail order, a defendant is presumed to be released on his or her own recognizance, meaning they are released without bond, when there is no compelling evidence the person poses a flight risk or is a danger to the community.

If there is evidence, however, that the person is at risk of those two factors, the judicial officer may set conditions. 

“Just because someone can’t afford a bond doesn’t mean that we’re going to ROR them,” Judge Massey said, referring to release on recognizance. “We go through a list of factors according to our laws, the statutes that govern government bonds in the state of Tennessee and our state constitution.”

A judicial commissioner or officer may set an affordable bail, a higher bail or no bail if the defendant is deemed a flight risk or danger to the community.

The judicial officer looks at factors including the defendant’s ties to the community, employment status, criminal history and reputation.

The order also established a Bail Hearing Room that will help fulfill the new requirements. It’s located on the second floor of the Criminal Justice Center at 201 Poplar Ave. and open during normal courtroom hours, 8 a.m. to 4:30 p.m., Monday through Friday. (The Daily Memphian had previously reported incorrect operating hours.)

A prosecutor, defense counsel and judicial officer are present during the bail hearing, which judges may choose to hold in their courtroom rather than the bail room, as Massey did with Freeman and Marion. 

Johnny Sanford, a defendant in a shooting at Prive restaurant that resulted in two deaths and five injuries March 29, was released on a $250,000 bond after an April 6 bail hearing in Shelby County General Sessions Criminal Court Division 15 Judge Christian Johnson’s courtroom. 

Sanford, charged with first-degree murder and being a convicted felon in possession of a firearm, was initially held without bond. 

Johnson also set bail for two of Sanford’s co-defendants during April 13 hearings in his courtroom.

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Kendrick Gray, whose charges include first-degree murder, had his bail set at $600,000. Damone Sykes, whose charges include attempted first-degree murder, had his bail lowered from $200,000 to $100,000. 

As of April 17, neither Gray nor Sykes had posted bail. 

‘The whole point of bail is not to punish, because someone hasn’t been convicted.’

Spickler said people who are released on bail are not responsible for most of the violent crimes in Memphis. Spickler cited Just City data, which shows 23% of Shelby County defendants are arrested for another crime while out on bail, and rearrests for violent crimes while out on bail occur less than 4% of the time.

“These stories about shooters who have cycled through the system, or who may have been out, are outliers,” Spickler said. “Tens of thousands of people (have) been safely released who have not been charged with a violent crime.”

Shelby County District Attorney General Steve Mulroy said the new bail system provides a more consistent bail-setting process that follows the Tennessee Constitution. The Constitution mandates “that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

“What had been happening was judicial commissioners were sort of just on the fly making up numbers for bail without any consideration of what somebody could actually afford,” Mulroy said. “And the whole point of bail is not to punish, because someone hasn’t been convicted.”

State Sen. Brent Taylor, however, provided a different interpretation of the Constitution, saying “excessive” and “unaffordable” are not mutually inclusive. 

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“Let’s not confuse affordability with excessiveness,” Taylor said. “Something can be unaffordable and still not be excessive.”

Taylor added that he would like to see the financial status of the defendant removed from the consideration for pretrial release. 

He said he is in talks with colleagues about a proposal that would set bail schedules, comparing it to setting sentences for certain crimes. 

Another bill that passed Monday, April 17, in the Tennessee General Assembly requires judicial commissioners to get approval from a judge if releasing a defendant on their own recognizance if a defendant is charged with a Class A or B felony; aggravated assault; aggravated assault against a first responder; or domestic assault. It is now headed to Gov. Bill Lee’s desk for a signature. 

Between Feb. 15 and March 15, 31% of 1,279 defendants in Shelby County were released on their own recognizance during their initial bail hearing, according to data presented at a March 29 Shelby County Commission committee meeting. John Marshall, head of the judicial commissioners, and Shelby County General Sessions Division 7 Judge Bill Anderson, the administrative judge who oversees the judicial commissioners, gave the presentation before the commission’s Law Enforcement, Corrections & Courts Committee.

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Six defendants were held without bail, and 509 — or 40% — were given affordable bails, defined as an amount that a defendant could pay in its entirety within 24 hours without borrowing money.

Defendants who use a bail bonding company typically pay up to 10% of the set bail to the company, meaning Sanford could have paid up to $25,000 of his $250,000 bail. Defendants who use bonding companies typically do not get that money back.

Alternatively, if they’re able, defendants can choose to pay the full bail amount to the court and get the money refunded at the time of the case’s conclusion, as long as they make all required court appearances and don’t get arrested again while out on bail.

Marlinee Iverson, Shelby County Attorney, said everyone’s financial condition is taken into account during the bail process.

“So someone who is wealthy and someone who’s poor commit the same crime,” Iverson said. “And suppose they both get the same bail amount — $50,000. The poor person is not going to get out. The rich person is. And that’s not what the Constitution and laws contemplate — that disparity based on your economic status.”

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She added: “We’re not saying they should get released. We’re saying that those people should get a hearing to determine whether that bail should be left at $50,000, knowing that it’s going to keep them in jail until their case is over. That’s the whole goal there. The person who gets out, they don’t need a hearing, because they’re out.”

The exception to the rule is a defendant accused in a capital case — who has been charged with first-degree murder and a notice of intent to seek the death penalty has been filed — is held without bail.

‘They’re voting with their feet, because they’re scared.’

Of the 248 cases docketed in the new bail hearing room March 1-15, 26, or 36%, of the 72 misdemeanor cases posted bond, and 12, or 17%, were released on their own recognizance, according to the county commission presentation in March. Of the 176 felony cases, 78, or 44%, posted bond, and 14, or 8%, were released on their own recognizance.

Shelby County Commissioner Brandon Morrison, who was present at the committee meeting, said she was concerned about the number of defendants being released on their own recognizance or being given a bail below $5,000, which was 440, or 24%, of defendants.

She said she would like to see more publicly available data and information, including which judicial commissioner sets each bond and the safety assessment scores determined during the bail calculation process.

“I think what people are really tired of in Memphis, in particular, as in a lot of democratic cities, people are leaving,” Morrison said. “They’re voting with their feet because they’re scared. And if we’re just going to have a revolving door of theft and gun violence, we’re going to lose our tax base.

“And that, dramatically, will have horrible repercussions that will affect us all.”

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Shelby County Commissioner Mick Wright, who also was present during the committee meeting, said he would like to know if bail hearings are living up to the promise of having all sides being able to present their cases.

“Are victims being contacted, or are they being given an opportunity to speak?” Wright asked. 

Wright also would like to know how judges are making their decisions, citing the unintended release of first-degree murder suspect Gary Taylor on his own recognizance on Dec. 31, instead of being held without bond. Taylor was booked in jail on Jan. 3, once the mistake was realized. 

Spickler emphasized that when it comes to making policies and complying with the law and constitution, it is important not to “get distracted” and focus on outliers. 

“We have to focus on the law and on what works,” Spickler said. “And what works is only detaining people in our jail who need to be detained, not because they’re poor or not for any other reason, other than what the law says, which is making sure they come to court and making sure they’re not a safety risk.”