Lawsuit Targets Nashville Courts for Treating Bail Money Like Down Payments for Fines, Fees

ACLU argues the practice violates the Eighth Amendment.


Criminal courts in Nashville are demanding that some defendants treat bail funds as down payments for any potential court fines and fees. Today, several civil rights groups filed a lawsuit to stop the practice, arguing it's unconstitutional.

The American Civil Liberties Union, the Civil Rights Corps, and Nashville-based Choosing Justice Initiative are suing the criminal court of Davidson County, Tennessee, in federal court. They filed suit on behalf of a community bail fund and they are asking the court to rule that these garnishment demands are violations of the Eighth Amendment's prohibition on excessive fines and fees, as well as the 14th Amendment's right to due process.

When arrestees in Davidson County are offered bail to avoid pretrial imprisonment, they can go through a bail bond company or they can put the money up themselves. Those defendants who attempt to cover their own bail (including those who seek help from family members) face an additional requirement: A bail bond rule requires defendants to agree that the money they give the county to cover the bail can be garnished to pay for any fines and fees the defendant may owe the court if convicted.

The purpose of cash bail is, ostensibly, to make sure that defendants show up for court dates and don't cause trouble or commit offenses while awaiting trial. If defendants do as ordered, their money is supposed to be returned to them. But in Davidson County's system, if the defendant is convicted, the court can take their bail money as payment for any fines or fees the defendant owes.

"These garnishment practices bear no relationship to the constitutionally acceptable purpose of money bail: reasonably assuring court appearance. [Criminal Court Clerk Howard] Gentry's enforcement of these policies harms presumptively innocent people and their support networks by impermissibly taxing pretrial freedom and chilling the posting of bail," the lawsuit argues.

This garnishment practice means that family members or friends who offer their financial assistance to help a defendant make bail risk losing that money to the court if their friend is convicted, despite the fact that bail is supposed to be returned when the defendant shows up to court. While it is difficult to say what kind of chilling effect this practice has had on defendants looking for bail help from friends and family, Andrea Woods, an ACLU staff attorney with its Criminal Law Reform Project, tells Reason that roughly half of the people who were arrested in Davidson County in 2019 and given bail orders were unable to raise the funds they needed.

In late 2019, the rule became a problem for the Nashville Community Bail Fund (NCBF), a non-profit group that helps low-income defendants post bail. The Fund had been treated by the courts as exempt from the garnishment rule. People would donate to the fund, the fund put up money for bail, and then the fund got its money back when defendants met their pretrial release obligations. This system has enabled the NCBF to help about 1,000 people in the Nashville area get out of jail since 2016. (And lest anybody thinks that they're helping "criminals" get out of jail to cause more crimes—the narrative opponents of bail reform are using in New York—the NCBF notes that in 53 percent of the cases they assist, the result is no conviction.)

The NCBF operated with this exemption for three years. But in May, the judges with Davidson County's criminal court decided to rescind NCBF's exemption, claiming a concern that the bail fund had a significant amount of "conditional forfeiture" potential, essentially meaning that the fund was covering a lot of people's bail and that money could potentially be lost if defendants don't show up for court. What this has to do with garnishment is unclear, and the lawsuit notes that the judges didn't explain how revoking the exemption would actually make it more likely that defendants would show up for court.

"This practice is not rationally connected to the purpose of bail," Woods tells Reason. "It doesn't promote court appearances, and instead it's harming hundreds of people in Nashville. It's really baffling."

The most logical explanation is that the loss of the exemption means that the NCBF won't be able to help as many people, and therefore more people will likely remain in jail. The lawsuit notes that the fund has had to institute a monthly cap of $20,000 in bail assistance. Before the exemption was revoked, the organization reports spending an average of $67,000 each month in bail assistance. While it's not clear why the court revoked NCBF's exemption, it's clearly resulting in the organization helping fewer people make bail.

Nashville is not the only place where courts use bail payments to cover future fees if the defendant is convicted, so there may be other lawsuits like this one down the line. The effort to significantly reduce or eliminate cash bail demands altogether is getting much more media attention. But Woods notes that similar demands happen in Florida, Wisconsin, and Alabama, elsewhere in Tennessee, and in parts of Michigan.

Statistics show that people who aren't able to get bailed out of jail often end up facing harsher sentences and accept worse plea deals than those who are free to fight their case outside the confines of a jail cell. Davie Tucker Jr., the vice chairperson of NCBF's board, notes in a prepared statement that these garnishment rules are just another way to keep people behind bars even though they haven't been convicted.

"Without our intervention, those who cannot afford bail are forced to sit in cages, losing jobs, housing, and being separated from their families until their case concludes," Tucker said. "In the end many individuals plead guilty just to get out of jail."

The lawsuit, Nashville Community Bail Fund v. Gentry, was filed in the U.S. District Court for the Middle District of Tennessee. The lawsuit is asking the court to rule that these garnishment demands violate the Eighth and 14th Amendments, and they are seeking an injunction that would stop Davidson County from enforcing this policy.

Read the lawsuit here.

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  1. If they can withhold my tax refund to cover fines, why they can’t withhold a bail refund?

    1. For one thing, because the tax refund is unambiguously yours while the bail refund might actually be owed to your mother, brother-in-law or a non-profit like the NCBF.

      1. That’s not necessarily true, there are plenty of tax prep companies (as well as friends or family members) who will give you a loan contingent on your tax refund, so you can still owe that money to someone

        1. Unambiguously is the keyword. Your examples are all third parties to the refund. If someone puts up bail for someone else they must sign the bail agreement and all monies go back direct to them if the conditions of bail are met, not to the person out on bail who then agrees to return the money.

          Now you good argue that these fines are part of the conditions to meet but that is redefining the common law meaning of bail and still may not be permissible under the Constitution.

          1. *good = could

    2. What Kevin said. This is just the state making sure that an, in all likelihood, judgment-proof debtor can pay. It’s not taking the bail bonds company’s money, it’s assets of the defendant. And likely, some of the only liquid assets the defendant owns.

      Now, there’s probably a load of conflict of interest to sort through with an arrangement like this. Does the court charge higher bail if self-provided vs using a bondsman? Does the set bail amount magically resemble the amount of the likely fines if found guilty? Do court costs also magically add up to the cost of bail? Things like that. There are probably other ethical trouble spots.

      I guess turn the question around. Why should the defendant get their bail back if there will be a pending judgment against them due to conduct related to the offense they bailed out of jail for in the first place?

      1. It’s not taking the bail bonds company’s money, it’s assets of the defendant.

        That isn’t what is happening. They are taking the NCBF money to satisfy the defendants fines.

      2. OK, holding 3rd parties liable for fines, who may have put up a bond for the defendant, is bullshit. As is the revocation of NCBF’s exemption from this garnishment.

        I will say that ‘NCBF’s 54% of our clients aren’t convicted’ claim, as mentioned in the article, is one that could use some more scrutiny. Not convicted of what? All of the crimes for which the accused needed bail? Were the convictions for crimes that were eligible for deferred adjudication?

        I’m just not buying the face value connotation of that stat, which is over half the people the police arrest and jail are innocent.

        1. No, the face value of the stat is that over half the people that NCBF chooses to pay bail for are innocent. If NCBF vets people before giving them cash then it might not be unreasonable at all.

          1. Also the courts may have gotten used to plea bargain justice and may just dismiss the low level cases instead of bothering with a trial.

          2. “If NCBF vets people before giving them cash then it might not be unreasonable at all.”

            With their magical vetting machine? How exactly does that work?

            No, absent more evidence, I’ll instead think that NCBF is playing fast and loose with statistics. As most of the criminal justice advocacy groups do. Still doesn’t mean they should have lost their garnishment exemption. And they should get all of their money back that they put up for bonds where the defendant fully showed up for trial.

            I think Sometimes… might have the right of it, with many of these crimes being N.P.’d or eligible for deferred adjudication or similar.

            Or maybe Tennessee cops are in the habit of arresting mostly innocent people? I know which set of choices Reason writers would pick.

    3. Bail is only constitutionally permissible in the first place because of the historical practice of holding assets to ensure defendants do not flee justice. Using it for any other purpose is inherently excessive, and therefore violates the 8th Amendment.

      1. Per 8th amendment, it is only a violation in the federal court system. This happened in a Tennessee court.

  2. It would be simpler to just asset forfeiture all bail monies, and make the crooks sue to try to get it back.

    1. Don’t give them any ideas!

  3. The courts were jealous of the cops asset forfeiture scams and found a way to get in on the action. Plus the main purpose of being a judge is to screw as many people as possible.

    1. I think they are just lazy. They were tired of all these cases not being plea bargained because the defendant was out free instead of rotting away waiting for a trial. The courts job was becoming harder to manage so they had to put a stop to that.

      But that is just my speculative guess.

    2. What is all this tickets fines court cost? Just a jobs program for judges lawyers cops

  4. This is the same shit as revoking your driver’s license for any number of offenses that have nothing to do with your driving. It’s just a matter of “you’ve been sentenced to jail for a week but the jail’s full so we’ll just whack you with this stick instead”. You gave the government some money and now it’s theirs to do with as they please and you ain’t getting it back. (As I recall, doesn’t or didn’t Ohio impose court costs even on defendants found not guilty and demand non-refundable bonds equal to the amount of the fines of anybody wishing to appeal their convictions?)

    1. Right they will take your license till you pay the fine

    2. +1 Child Support arrears violation.

      Who says we don’t have debtors’ prisons in this country?

  5. Wait a minute. The expectation is that this guy shows up for court. Gets his bail money back. Immediately pays back his family, and then can’t pay his fines?

    Is it likely that someone who can’t pay fines is immediately paying back the bail money he borrowed?

    It seems more likely that the chilling effect is the realization that this guy is guilty, he’s going to pay a fine, and he’s never going to pay back the bail money he borrowed. Regardless of the path the money takes.

  6. Don’t convicts usually have to pay bail between the time they are convicted and the time they are sentenced and/or report to prison?

    How is this different from requiring bail until they pay their fines?

    I get that the real concern of reason is the excessive bail of an innocent person, but operationally this is about what happens to convicts, not accused.

  7. Bad as it may be, this example of excessive, unjust bail has nothing to do with the 8th amendment. The ACLU cannot be trusted because they argue from the basis of the phony doctrine of incorporation and make just about literally everything a federal bill of rights issue.

  8. They pull the same crap here in so.Illinois paid 400 bail for no show speeding ticket.
    Boom well guess what your fine is exactly 400 bucks. They are crooks thieves

    1. Virginia is renowned for having absolutely Draconian court fees, costs, and other expenses that end up far exceeding the criminal fine of the offense.

      Disgusting and abhorrent in America.

  9. Add Curry County, OR to that list of practitioners of this scam. No doubt it is actually pretty common.

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  12. Kentucky will also keep bail money to pay fines if the defendant is convicted. But Kentucky has also banned both bail bondsmen and bounty hunters. Accused in Kentucky pay their bail, usually 10% cash depending on circumstances, to a division of the court. Unless found guilty the citizen gets that money back, minus an admin fee. Under the bondsman system the citizen is out the whole 10% he pays to the bondsman.
    Bounty hunters from other states must present their paperwork to a KY judge and have the subject arrested by a KY law enforcement agency.

  13. As I see it, the rule would be fine if defendants always paid their bail out of their own funds.

    But that’s not the case all the time. Under this rule, if you voluntarily pay for *someone else’s* bail, you *must* agree that that money will go toward that person’s fine and fees, if any (unless you’re a bail bondsman, in which case apparently you get the money back if the guy shows up in court, even if he ends up with yuge fines).

    Someone might contribute to another person’s bail without in any way wishing to pay that persons’s fines if he’s found guilty.

    Maybe the motive is to keep the other person free until charges are resolved, or to uphold the presumption of innocence, or whatever.

    Bottom line, it’s *his* money and he should get to decide whether and to what extent to use that money to help a criminal suspect.

    That means he should get to decide whether he wants to pay the guy’s bail without committing to pay his fines.

    The greater power (the option of giving no money at all) includes the less (the option of paying for bail but not for fines).

  14. Seems to me that the garnishment policy makes the defendant less likely to show up for trial, defeating the notional purpose of bail.

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