The work of judicial commissioners has come under increased public scrutiny as the new Standing Bail Order for General Sessions Criminal Court of Shelby County took effect earlier this year.

Shelby County’s Lead Judicial Commissioner John Marshall heads the group of 14 commissioners whose primary function, according to him, is to review every arrest that comes into the Shelby County Criminal Justice Center at 201 Poplar Ave.

One of the basic functions of the judicial commissioners’ jobs is to set initial bail for recently arrested people. If those individuals cannot afford that bail and remain in custody, the bail order requires that they, within 72 hours, receive a full hearing before a judge or judicial commissioner to revisit the bail amount. A defense attorney and a representative from the Shelby County District Attorney’s office are both present at the hearing.

Where are cases going in Shelby County? Wherever it is, they’re not getting there fast.

Marshall said the group of judicial commissioners has to thread a needle every day on the decisions it makes. 

“We’re all citizens, we have families here. That’s what makes it hard,” Marshall said. “We have to balance. I want the public to understand that in making our bond decision, it’s all about a balance between that defendant’s right to have liberty to get out until he or she is convicted and the state’s interest.”

In an effort to further promote public understanding, Marshall sat down with representatives of The Daily Memphian for a wide-ranging conversation. This is the second in a two-part interview, which has been edited for length and clarity.

The Daily Memphian: Let’s talk about the controversy surrounding affordable bail.

John Marshall: The standing bail order reiterates and emphasizes that we are to take a very step-by-step approach. … In our analysis, we’re supposed to look at these factors and figure out can we ROR this person? Can we ROR them with conditions? Would these conditions protect the public and make sure that the defendant gets to court?

(At this point in the discussion, Marshall referenced several sections of the Tennessee Code Annotated: Section 40-11-115, which outlines the factors for ROR or unsecured bond; Section 40-11-116, which outlines five levels of public safety assessment supervision; and Section 40-11-118, which outlines the factors a judicial official should consider when setting bail.)

If more police are the answer, exactly what will they do?

Then the next step is affordable bail. We look at the Vera calculator. (The calculator) is nothing more than a person’s monthly disposable income. There’s no great magic about it. We are not compelled to set an affordable bond if we don’t think it sufficiently protects the public or ensures this person will be back to court. That is incorrect when it’s been said that the commissioners are just thinking we have to give them an affordable bail.

I don’t know the statistics, but I’d say probably more, if not most, of the bails we’re setting are unaffordable because the majority of our defendants have zero or a very small amount on the calculator. … The cases that have been in the news, people who got out on some violent offense. I can guarantee you zero was on their Vera calculator. I’m not saying … whether I think the calculator is good or not. I’m saying, as a judicial commissioner, it’s just one piece.

Let me give you an example. Someone has been ROR’ed on shoplifting. They don’t have any record, then they get arrested for shoplifting again. The statute says when someone has a pending case and they’re arrested again, the bond is to be set at twice the customary amount we would normally set for the new offense. If someone was ROR’ed the first time, we can’t ROR them again because the statute says we have to give them a money bond. 

Now let’s make it a little more high-stakes. Someone has $50,000 (bond) for carjacking, and they made it. They get arrested again for something else. We, the judicial commissioners, are going to set the bond on that new charge. So let’s say they get arrested for auto theft. The statute tells us to set that (bail) at twice the amount we would normally set for an auto theft, not a carjacking. It doesn’t set it at $100,000. For an auto theft, say it would be $10,000. So then I would set $20,000. But the public is going to look at that and go, ‘What?’

Mulroy says judicial commissioners should set unaffordable bail, in certain cases

I also think a lot of the public, ‘It’s an (aggravated) robbery? Set them all at $100,000.’ The courts have already said you can’t do that. That’s called a schedule. The (Torres vs. Collins) case out of East Tennessee made a big point of saying that a person deserves an individualized hearing. So that’s what it’s all about. It has to be tailored to that specific person and that specific situation. And that’s what (judicial commissioners) are paid for, to make an assessment of that.

The commissioners can’t do anything about that first case. He’s already made that bond. (But) the DA is keeping up. They can go over to Division 9 and say, ‘Your honor, he was rearrested. We want you to revoke his bond.’

Let’s say he makes the bond on the new case. When he goes over into Division 9 on his carjacking case, the state can ask for a bond increase and he can be taken into custody right then and there.

But in your scenario, they might have been released that morning, and it could be a week later before they appear in Division 9. That is the heart of it for the people who are frustrated, the dynamic that sends them through the roof. 

If we follow the law the way the law is written, we have to look at that auto theft case, and we can make an argument, but we can’t just set a $200,000 or $300,000 (bond) on a car theft. I can definitely understand the public being upset about that. But you understand how that would set off (alarms).

When you’ve got a situation like the “Operation Broken Bottles” theft-ring indictments and arrests MPD announced in June, and suspects potentially fleeing scenes in cars, how do you determine the threat of public safety? 

That’s a situation where you’ve got a pattern that it is reaching over into the territory of danger to the public, especially when you have someone fleeing like that. We, of course, in making our initial decision are going to look at that. At what point does it become a danger to the public? That’s the big question.

“At what point does it become a danger to the public? That’s the big question.”

John Marshall,
Shelby County Lead Judicial Commissioner

That’s the needle we have to thread. And it’s not easy. We’re all citizens, we have families here. That’s what makes it hard. We have to balance. I want the public to understand that in making our bond decision, it’s all about a balance between that defendant’s right to have liberty to get out until he or she is convicted and the state’s interest. Obviously there’s some gray area, and I know that’s not very satisfying. But again, that’s the nature of our judiciary. 

Knowing you can’t speak on specific cases, have you seen anybody go through this new bail system and then get re-arrested?

Sure, I’ve seen it. I haven’t seen it a lot, but I’ve seen it just like I’ve seen it since 1995. I’ve been working at 201 (Poplar) with the exception of two or three years since 1995.

““I have seen people get arrested, get out on bond and re-offend since 1995. I’m not perceiving that there’s been this dramatic increase...””

John Marshall,
Shelby County Lead Judicial Commissioner

I have seen people get arrested, get out on bond and re-offend since 1995. I’m not perceiving that there’s been this dramatic increase (since the new bail order). I understand the public has, because there have been some high-profile cases, and I completely get that, but from someone on the inside, that’s not a new thing.

(Noted defense attorney) Leslie Ballin would tell you, experienced DA’s would tell you, all sorts of people at 201 would tell you, it’s not uncommon for a defendant to have more than one case at a time. It could be they were picked up on a warrant, a felony warrant, and they had felony drugs on them. That happens a lot. Now they have two cases in two different divisions. They might be arrested on a burglary and a few days later, MPD charges them with more burglary. So people can end up with several cases. It doesn’t necessarily mean they made a bond and then went out and did another act.

That does happen, and nobody can sit here and tell you it doesn’t, and I understand particularly if it’s a violent offense that’s one time too many. I don’t know if we can ever be 100% foolproof that that’s not going to happen.

On July 1, did a new law go into effect that said judicial commissioners can no longer make determinations on violent offenses?

That’s another big misconception. The state legislature passed a bill that said that only an elected judge can ROR someone on (more serious) felonies, aggravated assault and certain domestic violent felonies. The way we’ve interpreted that is that we can still set bond, we just can’t ROR. Not a lot of those offenses were going to be ROR’ed anyway. We are still doing that initial bond setting because we’ve kind of got a two-tiered system now.

The first bond is set by us in the jail. If the person makes it, they’re not going to the bail hearing room to be reviewed. If they can’t make it in that 72-hour period, they’re going to be set for a hearing in front of the commissioners where the state has the burden. It’s an adversarial hearing, there’s a lawyer there, so it’s a whole different ball game. If it’s those types of crimes we can’t ROR, we’re sending those to a judge.

As a more cautious interpretation?

I think that’s fair.

Once we started this new process, some of the judges said they wanted to do their own (hearings). It was said from the beginning, ‘We’re not taking power and authority away from the judges.’ So some of them, from the get-go, wanted to do their own hearings. And if a defense attorney wants an ROR, they’ll have to ask an elected judge for it.

And you don’t deal with juveniles?

We have nothing to do with juveniles, and nothing to do with indictments.

What about the data?

When the county commission did the resolution establishing the bail hearing room, it set out a number of data points that they wanted to report every six months on. And then buried in there was, ‘We want a baseline report for first six months.’ … The judges and the commissioners don’t have a statistician on board.

Pretrial services, as I said, they’re one of the most underappreciated county departments, but they are masters at data. They’ve been keeping data on bonds… They weren’t tracking the things that necessarily the county commission was wanting, so that’s why it’s taken so long. … It’s just way more complicated than people realize. It’s not like we could just punch a button and all that would come out. We’re hoping sometime in August, we can get those reports that (show) six months before the bail hearing and (also) maybe three or four months after.