Pre-Trial Release in Nashville, Part I: How To Get Out Of Jail

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Davidson County introduced new guidelines for it’s pre-trial release program in April, after two years of evaluation by all stakeholders in the process. Since then, Scoop: Nashville has been collecting data on the program. Over the next four weeks we will have installments that show how the program works, who it is benefiting, how bail bonding companies are being impacted, what concerns are being raised by the community, and most importantly – is it working as planned? Today, we’re starting with the most commonly asked question by the community – how you qualify for pre-trial release in Nashville?

Sheriff Daron Hall said of the new program reform, when it was first unveiled:

“An individual’s ability to pay should never be a determining factor in their ability to get out of jail.”

Instead of paying a cash bond, the pre-trial release program allows individuals to pay a small supervision fee to be a part of the program, which is based on a scoring system tool that considers two main factors: who is likely to return for a court date, and who is likely to be involved in criminal activity while awaiting that court appearance.

Nashville’s pre-trial release program has three distinct levels, based upon a defendant’s risk level, the requirements ranging from simply reminding the defendant of their court date, to requiring a monthly in-person check-in:

Nashville has a 24/7 ‘night court’ where judicial commissioners are available to make the initial bond decision immediately after an arrest is made. That decision can then be reviewed by a general sessions court judge the next business day if the defendant is still in custody. The decision-making process outlined below is what both commissioners and judges currently use as a part of the process to decide if a defendant is granted pre-trial release.

We’ll have exact statistics in an upcoming installment, but since the program debuted in April, a defendant must meet some high standards to not be given pre-trial release. Here’s how the decision process starts – with the officer. Any officer has the choice on many misdemeanors to issue a citation, or conduct a physical arrest. If a physical arrest is made, the decision flow below begins:

Chart Data Source: DCSO

Once an arrest is made, and probable cause is found by a night court commissioner, the Sheriff’s department will prepare a pre-trial release risk assessment, and immediately rule out anyone that has a Class A, B, or C felony, any domestic violence charges that involves an intimate partner, D & E felonies that have a person as a victim, 3rd or more DUI, escape charges, or that has been arrested at least twice in the past 90 days, in addition to other various factors in the ‘excluded’ list:

As long as the charge isn’t listed in the ‘excluded’ list above, the judicial commissioner then consults the risk matrix to determine the suggested recommendation for bond or pre-trial release, and the proposed level. There are two risk matrices currently in use, one for misdemeanors, and on for felonies.

If the charge is a misdemeanor, and not excluded above, then it qualifies for some level of pre-trial release. The matrix below shows the recommended levels for each risk level, but is ultimately let up to the judicial commissioner’s discretion.

Misdemeanor Pre-trial release recommendation matrix:

Chart Data Source: DCSO

Many felonies also qualify for pre-trial release as long as they’re Class D or E, and without a person as a victim. Below are the recommendations for the commissioner to consider for these defendants.

Qualifying Felony Pre-trial release recommendation matrix:

Chart Data Source: DCSO

Once the risk matrix has been consulted for a recommendation, the judicial commissioner is the ultimate decision maker, and may follow the recommendations, or not, depending on the individual circumstances.  At this point, the defendant can be released on the pre-trial release program, or given a secured bond amount, as the decision tree chart continues below.

Chart Data Source: DCSO

If the defendant is given a secured bond, and cannot afford to post a bond, they still have an opportunity to qualify for the pre-trial release program, as they will have a bond review hearing, generally on the next day the court is in session, depending on the time of their arrest, as show in the chart below:

Source Data: Criminal Court Clerk

As shown below, at this point if a defendant is still in custody and has been unable to make their bond, a general sessions judge will conduct a bond review hearing, based on ability to pay, risk assessment, proof offered, lethality assessment, along with the recommendations of the defense and prosecution.

Chart Data Source: DCSO

At the bond review hearing, the judge can order the defendant be released via ‘ROR’, an unsecured bond, or pre-trial release. If the judge decides the defendant’s case doesn’t qualify for any of the above, a written finding must be issued, stating why a less restrictive measures won’t work, and that the defendant’s ability to pay has been considered.

Although local residency status may be considered as a part of the failure to appear (FTA) risk level, defendants from out-of-state are also eligible for the pre-trial release program. We’ll have more specific statistics on that, along with many other data points in next week’s installment, which will cover more of the data we’ve been tracking in-depth.

The overall pre-trial release program has operated in some form in Nashville for approximately 30 years. These new guidelines began in April of 2018, at which time the forfeiture rate was 4%, and the general time spent under supervision was 1-6 months.

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