- (female announcer) Production funding for Behind the Headlines is made possible in part by the WKNO Production Fund, the WKNO Endowment Fund, and by viewers like you, thank you.

- Differing perspectives on public safety and criminal justice, tonight on Behind the Headlines.

[intense orchestral music] I am Eric Barnes with The Daily Memphian.

Thanks for joining us.

I am joined tonight by Brent Taylor, state senator.

Thanks for being here again.

- Thank you for having me.

I went a long time, you never invited me.

- Now I can't get enough of you.

- Glad to be here.

- Thank you for being here, along with Josh Spickler from Just City.

Thank you for being here again.

- Thanks for having me back.

- We'll talk a bunch about criminal justice, public safety, some of the laws that you have been pushing for and some that you passed or sponsored in the legislature and the differing perspectives.

I wanna do a really quick, and it will be inadequate, just description of both your perspectives on crime and you guys will fill that out certainly.

And I think many, many people who have watched the show, you've both been on many times, read The Daily Memphian or other media kind of know where you all stand on things.

But I'll start with you, Josh.

Just City is a nonprofit.

I'm just gonna read the mission.

The mission is "to transform local criminal justice policy "and practice to ensure it is fair for all people regardless of wealth, race, or ethnicity", excuse me.

And Senator Taylor, you've been, again, I will summarize inadequately, push for more tough on crimes, stiffer sentencing, limits on bail, moving certain offenses higher up the ladder in terms of being felonies or misdemeanor to felony and so on, and I think again, we'll go through more of that as we talk.

Let's start though with bail and I'll put this first question to you, Senator Taylor.

Before we get, there's been changes to bail, a lot of arguments about bail.

It is both this legal process, but it symbolizes to a lot of people both the frustration with the criminal justice system or maybe a misunderstanding.

It gets conflated with sentencing.

It gets into issues of repeat offenses.

All kinds of complicated things that we'll have time to talk about with both of y'all, but I'll ask you this question, then ask Josh.

What is in your mind the purpose of bail?

- Thank you for having me.

The purpose of bail is to ensure that a defendant, when they're arrested, that if they're released, in exchange for their release, they put up bail, and the purpose of it is to ensure that number one, the community will be safe and number two, that they will show back up for court.

That is simply it.

And the way we have historically done it is that if somebody puts up enough money and enough skin in the game, that they don't wanna run the risk of losing that money and having that bail forfeited, and so that they'll show back up for court.

And we've all heard of grandmothers coming in and paying bail and other family members, and the reason that's important is that the family will make sure that they show up for court.

And just most recently we saw the guy who killed, allegedly killed Red the Watermelon Man who was out on bail and he skipped bail, and I think his bail was $100,000 bail.

- I don't remember about that.

- Yeah, I don't remember.

It was I think a $100,000 bail and even that wasn't enough to ensure that he showed back up for court.

But the purpose of bail is to ensure that people show back up for court for their court hearing and that we protect the public if they're released.

- And I should say with you, Josh, you are also a lawyer and were a public defender for how many years in total?

- Five to ten.

- Five to ten?

- I did two stints.

It sounds like a prison sentence.

No, I was there twice in total.

- Okay, purpose of bail?

- Bail is actually one piece of the pretrial release detention puzzle.

So when someone comes to our jail and is charged with a crime, we have a lot of options with what to do with them.

We can keep them in jail without bail.

That is in fact how about 25% of the people in Shelby County Jail right now are there.

They do not have bail.

No matter how much money they have, they cannot pay their way out, all the way down to what we call a release on recognizance where we just let you out and tell you when to come back to court.

And there are a lot of things in between that and bail is one of those things.

In addition to releasing on recognizance, we can release with conditions.

You have to call in every day.

We text you, we give you supports to make sure you get back to court on time.

And then we can get into money and we can set an amount that is reasonable that you may be able to pay, that we expect you to pay, but it is money that you will lose if you don't show up and then beyond that, there is an unaffordable amount that we can set under the Constitution.

So bail is not just one monolithic thing that everyone gets or that we decide to give or not to give everyone who comes into the jail.

It's a piece of making sure that yes, people come back to court and that our community is safe while someone waits to have their charges disposed.

- In that spectrum of the way bail is used, is there too much, too little, or just is the system working correctly in terms of the discretion that judges have, the judicial commissioners have, the way the district attorney recommends or asks for bail?

The way the public defenders or the private attorneys, but it's often public defenders.

I mean, there's all these parts and pieces kind of coming together in this setting of bail that again, has become this hot button.

Senator Taylor's brought it up, other politicians, former Mayor Strickland, all kinds of people.

Why are people who are accused of seemingly very violent, dangerous offenses out on, released on their own recognizance or released on that $10,000 bail?

It causes this frustration, but again, you're talking about there's this huge spectrum of the way bail can be used.

- Right, well, and I've said this to Senator Taylor before and probably in this chair, this is a very bad way to determine who is going to come back to court and who may be a risk to the community.

Money really has nothing to do with that, especially when you have a commercial bail industry sitting next to this whole thing that we're discussing where people can go and for a fraction of the dollar amount that a judge determines, that a judge chooses, they can win their freedom, right?

So that's why we're surprised sometimes when people get out because we don't really do a good job of understanding how they can come up with money and it's very much in flux right now, but decades ago we set up the law in Tennessee to be pretty good, to ask a lot of really good questions to consider a lot of factors.

I think it was nine up until a couple of years ago, factors that judges have to consider and we weren't really doing a good job of it, and that's why the changes have come around the last couple years.

- I wanna come back to you, Senator Taylor, of what a better, what some of those other alternatives are, but for your perspective.

You passed, you sponsored, pushed, and the law was passed to take out consideration of someone's financial means in setting bail.

I probably poorly summarized that, but again, that system, one, do you agree that that spectrum of things that Josh described is that's how it's working and your concerns if you have them, I think you do, about how bail is implemented, and used, and applied?

- Right, so the law that I had passed deals with ability to pay and there has long been part of that criteria that Josh mentioned that is in the law.

One of them is financial status and the reason financial status was in there was so if you had a high net worth individual that is a defendant, the judge needed to be able to know how high to set the bail to ensure that that person wasn't a flight risk.

So through the years and more recently, I think the restorative justice schemers are the ones that have come up and decided that well, we can use this financial status to be a way to determine if a defendant has the ability to pay bail and so that financial status morphed into allowing people to get out on bail just based on how much money they might happen to have in their pocket.

Now there was a court case, and I'm sure Josh will tell us about it, it was a court case in East Tennessee in the Eastern District Federal Court where a judge did allude that financial status can be used as an ability to pay, but that has not been adjudicated at the appellate level or the Supreme Court and it doesn't apply in the Western District of Tennessee.

And so that's why I passed the law that eliminates the ability to pay from consideration when judges are looking to set bail.

- That's not what was happening in Shelby County.

We've never had a system where the amount of money in your pocket determines what happens to you.

- But it was a factor.

- It's a factor.

Financial condition was a factor, and I would love to have a discourse on how you delineate between financial condition and ability to pay, but probably we don't have time for that.

Wealth-based detention is not okay in America.

It has not been okay in America for decades, since the courts first began to question this idea of money.

We cannot detain people simply because of money.

We can detain them if we think they're not gonna be back to court.

We can detain them if we believe it's too risky to let them out, but we cannot put them in jail just because they're poor.

That is not something we do in America.

Liberty is the default in America and that's why understanding how much money someone has, how much money they can pay is important.

We weren't doing a good job of it and when we set out these new changes that have resulted in some of this legislation, we said affordable bail is an option.

Unaffordable bail is also an option as long as a judge goes through the factors, and makes a finding, and writes it down, we cannot give this person an affordable bail and it happens all the time.

- And cannot do it because this person is, I'm making this, a repeat offender.

There was facts domestic, the facts of the case, and you are fine with that?

- All of those factors are in the law.

It's a great law.

We've got seven factors now, eight factors, and if judges are considering those and they walk through the constitutional steps and give someone due process with an attorney with the state having an attorney as well, we can set a bail that's unaffordable and we do it all the time.

But what it does when we, the way we used to do it, when we weren't following the law, is it sweeps a lot of other people in there that don't need to be in there, that we as an organization have proven don't need to be in there.

That many folks across this country are working to ensure that their freedom is available to them no matter how much money they have.

- Let me just push back.

First of all, no one is looking to incarcerate people or put people in jail simply because they're poor, so I push back on that.

The other thing is they have been using an ability to pay.

As part of the standing bail order, it says in the order that they have to use the Vera calculator, ability to pay calculator.

- Vera Calculator, Vera Institute.

- Vera Institute of Justice.

They have an ability to pay calculator and it is in the standing bail order they have to use that ability to pay calculator.

- Standing bail order, for those not as close to it, is this is the set of guidelines that were negotiated, right, between a whole lot of parties that we talk about who set bail.

That these are the kind of rules, the guidelines, the structure we're gonna use in doing this.

We'll come back to you.

- Our local interpretations of the state law, the judges put that in an order.

- Just for everybody, so go ahead.

- And so we're not, number one, we're not putting people in jail simply because they're poor.

Nonviolent offenders don't need to be in jail.

They should have access to bail, but it's the violent offenders who are getting through the system through the ability to pay calculator and whether or not they're having enough source hearings to determine whether or not the funds being used to make bail were gotten from illegal activity.

So that's why I pushed and changed the law that the ability to pay calculator can't be used in bail setting.

- Let me come back to something you aid earlier, Josh, and you can also address that.

We still got a lot of time.

You said that the system, it doesn't sound like you think the system, even separate from this ability to pay change, is really working that well.

Or maybe I misunderstood?

You said that we do this based on what people make and the amount of money they have is not good.

So if you're saying there are, and you were saying, I mean, you've said it before on the show, that there are people who shouldn't get out, they are a danger to the community and we should set unaffordable bail or not do bail.

What are those criteria then?

And then when people point to examples of repeat offenders getting out and offending again, what broke in the system?

- This system is actually pretty good.

People much smarter than me, well, I mean, it's got many problems and the problem that, as you read in our mission statement, we are concerned most with is that people don't get detained simply because they're poor.

And while that's not the intention of this system, it does happen and it especially happens when a state outlaws a finding of ability to pay.

How can we then know that they're poor?

How can we then know that they're wealthy?

We can't have this system if we don't understand ability to pay and having the ability to pay is not the only question.

It is one of many, to your point.

What are the factors?

What are the risks?

What is the history of this person?

But this system gets people back to court and it protects us a whole lot better than you would think if you read the media and listen to a lot of the narrative.

This system succeeds, vast majority of the time, especially with lower-level offenses all the way up into medium felonies.

People come to court, people do not re-offend.

We're talking about tens of thousands of people over two and three year periods and hundreds that we can read lists about the crimes.

They're there, we fail, but we succeed vastly more than we fail.

- Lemme ask- Go ahead.

- The system doesn't work and people do re-offend.

I mean I've got a list here.

Vontavius Muirhead, which is the most recent example from just yesterday.

He was granted diversion and probation weeks before he went on a deadly crime spree.

Miguel Andrade who murdered Reverend Eason-Williams when he was wearing an ankle monitor and when he allegedly killed her.

Kendrick Ray shot the family of four on the interstate and he was out on $500 bail from a previous gun charge.

And I could go on and on and on, so the system doesn't work.

- How do you see the future?

- But wait, let me just ask this.

Appreciate that and we appreciate those and they're horrific, right?

No one's saying they're not horrific, I don't think.

What do you expect?

Do you expect this change in the bail system around ability to pay to end those types of incidents?

Or are there further things that you want to do to the bail system to make it where those incidents, however many there are, happen zero or near zero times?

- Yeah and there were several other laws that I got passed as well.

Number one, we have bail conditions and Josh mentioned that earlier, that people can be released with conditions and no one was monitoring those bail conditions.

I'll give you an example.

Jaylen Lobley, who was the defendant that was involved in the police shooting that ultimately led to the death of Officer McKinney, he had been arrested a couple months earlier, was released on his own recognizance with conditions.

And one of the conditions was he had a curfew 6 PM to 6 AM.

What happens is he violates that.

He winds up at two o'clock in the morning, police find him in a car with a bunch of weapons, a firefight ensues.

And at the end when the smoke clears, Officer McKinney is dead.

So I passed a law that says if you're released on bail with conditions, then somebody needs to monitor that.

So pretrial services will now have to monitor those conditions.

The other thing we did was I passed a law that says that if you violate your bail conditions, that that becomes a crime in and of itself.

Up until now, if somebody violated bail conditions, it just got written in the record and whenever they had a court hearing, which may be two, three, four months down the road, the judge will deal with it then and even then it was a contempt of court charge.

So now it is a class A misdemeanor.

They get additional year for violating the bail conditions.

- What about those sorts of changes?

- Well, but I wanna push back hard against this idea that there is a list and that there are names and that those names, actually they are horrific, right, and those represent harm and damage and trauma in families lives and whole communities, neighborhoods, all of us, even if we're not directly impacted, are affected by these incidents.

And we could read those for the next twenty-two minutes on this show.

It would take a 50-part WKNO series to read about the 40,000 people who were released over the last two or three years who were not then accused of violence, who did not cause harm in our community.

We have yet to find a cohort of pretrial releasees who have failed more than they've succeeded.

That is the facts.

That is how pretrial works in America.

We're pretty good at predicting risk.

What we can't do is see the future.

And until we come up with a way where we can, we've gotta make these things better so that these things don't happen.

I totally agree with that.

But let's focus on those small problems that we have in this system and not use sweeping laws to make the system unconstitutional.

- There's too much focus on the defendant and how we can make it easy on them.

These are real victims.

These are people who have been murdered.

- I 100% agree.

- Families that have been changed forever because someone made a bad decision and let somebody outta jail when they shouldn't have.

And so there's been entirely too much focus on the defendant and what we can do to try to rehabilitate them and not enough focus on the victim.

Look, the defendants have plenty of rights.

They're enshrined in the constitution.

Everybody is focused on the defendant and their rights, but nobody is focused on the victim and the impact that it has on the victim's family.

- Well that's just that one of the reasons these are stories is because of the victims, is because of the pain, is because of the attention that a story from a media outlet will get, that's part of it.

So to say that no one is concerned with the victims, this whole system is concerned with the victims and that's why we have to get better because the harm, again, that has occurred to these people, to these families, to these communities, to all of us as a community is addressed when we succeed more often than we fail and that's what the system's doing.

We've got to work on those small parts of it that fail us.

- The other bills that Senator Taylor, I'm sorry I'm pointing so much, but Senator Taylor passed, do you have issues, concerns with those?

- Well, I'll talk about quickly the one he mentioned that creates a misdemeanor offense for someone who violates bail.

We live in Shelby County, Tennessee, the most incarcerated county in one of the top 10 most incarcerated states in the most incarcerated country in the history of the world.

If incarceration and the threat of incarceration and additional laws and additional sentences had an impact on the types of tragedies that we're talking about, we would be in the safest community in the safest city, right?

More incarceration is not the answer.

More information for these judges, transparency and accountability for these judges that I think we agree we need more of, that will bring us closer to a safe community.

Because when we came to Shelby County two years ago and said, let's fix this, the judges were doing this very differently.

We're doing it a little better and one of the big things we're doing is giving these judges and judicial commissioners more information, not less.

- More information in the same, we have about eight minutes here, more information in the sense that they can make better decisions- - Correct.

- And identify the likely repeat offenders?

- Absolutely and there's evidence that that's happening.

There's evidence, data, early data that suggests that we are making better pretrial release decisions.

There's still lists, there's still offenses, there's still tragedies and there always will be, but there are fewer of them.

You don't hear that because it's not news.

- Well along with those changes, the other changes that you just talked about, pretrial, you know, monitoring, is there funding for Shelby County or Shelby County or the City of Memphis expected to come up with the money to do that?

'Cause it takes people, it takes resource.

We had Judge Sugarman, the juvenile court judge, you know, he talked about, you know, what it costs to do interventions with young people, to monitor families.

All this costs money.

Is the state just setting the laws or are they also putting money towards these changes?

- Right now it would be based on the county that has pretrial services and not every county or judicial district has pretrial services.

Shelby County's one that has it.

So it would be the county's responsibility to pay for that.

But you know, if you look at Detroit, Detroit was once the example of a failed American city.

Crime was rampant.

People, mass exodus leaving.

Businesses wouldn't invest there.

They've begun to turn the corner and they've solved largely their crime problem.

And one of the things that they did, two things.

One, they cleared out their docket.

And the other thing is they started monitoring bail conditions.

And when people violated their bail conditions they went and arrested 'em and put 'em back in jail.

And they credit those two things more than anything else as what they did to bring crime down in Detroit.

And I was just in Detroit a week ago and it is a vastly different city than it was just 10 years ago.

So again, going back to what he said earlier, I can tell you one thing, when somebody's in jail, they can't victimize another Memphian.

And that is my point is if we can find violent offenders when the police do their job and they arrest these violent offenders, if we put 'em in jail, they can't victimize another Memphian and that's what I'm looking to do.

- Let me let you respond to that.

- Yeah and I'll just as to the Detroit thing, like this is an area where we agree 'cause the things you're describing are helping Detroit get closer to swift response and certain response and that is a place where we're lacking in Shelby County.

We agree on that.

The court system and policing and accountability does not work swiftly and it does not work certainly in Shelby County.

And so those we know from study after study after study are so much more important than severity, right?

Severity of a sentence is less important than swiftness and certainness and Detroit has taken steps to address that.

It's why we have a court watch at Just City.

We put people in the chairs in the courtrooms to say, we're watching, we need you to work harder, we need you to work longer, we need to get these things happening so that people in the community know if they make those decisions, if they harm other people, they are going to be held accountable, quickly and certainly, not necessarily severely.

I can speak to the, you know, detention as incapacitation where yes, you can't harm people outside of a prison if you're in a prison, but that is a very, very expensive proposition.

And we can look at the numbers from two and three years of Shelby County.

We have actual data and we can say, what if we put everyone charged with an ag assault in jail for the rest of their sentence?

What will that do to violent crime in Memphis?

And it won't do much.

I mean, it results in single digit one- and two-percent reductions in violent crime, which we're seeing anyway, let's talk about, we're seeing reductions in violent crime.

We could put people in prison where they can't harm folks in our communities and it would reduce violent crime, but a very, very small amount.

The truth is incapacitation is not a viable solution to these problems.

- Yeah, the cost is huge.

I mean the Shelby County's got trouble, obviously the City of Memphis has huge budget trouble.

The jail is, you know, I mean they've got locks that don't work in the jail and so they've got guards standing in front of each.

I mean this, it's not as simple, it's just money.

There's gonna be money.

Somebody can say it should be spent more efficiently, more effectively, but again, is there a state appetite for helping Shelby County?

If the appetite is put more people in jail, is there an appetite for we're gonna help fund that?

- Yeah, there is absolutely an appetite for that.

Matter of fact, two sessions ago we set aside fifty million dollars to build a new prison.

These are the things that Memphians and Tennesseeans want.

They want people who violate the law to be separated from society.

If you can't function in a society, in a safe manner, in a respectful manner, and you violate our laws, then we're gonna arrest you, we're gonna try you and if you're found guilty, we're gonna separate you from society.

And we made a down payment on a new prison at $50 million, so yes- - But they're talking about a billion dollars for the prison.

I mean, so, but let me, we've only got a couple minutes left and apologies for kind of cutting you all off a little bit as we get the last few things in.

The other thing overwhelmingly people in Memphis and Shelby County are saying across all stripes is they would like more gun control.

Limits, common sense gun reform.

There are too many assault weapons, the open carry, the permitless carry.

There was really not a lot of movement at the legislature about that.

What is your take?

Is there ever gonna be, and I'm just saying this is very much the will of the surveying we and others have done of Memphis and Shelby County about guns.

- Right.

There's gonna be no movement on that because the same gun laws that apply in Shelby County, apply statewide.

Everyone else, the other 94 counties, seem to be able to live with our gun laws the way they are.

It's just here in Shelby County that represents one-third of Tennessee's criminal activities in Shelby County.

And so there's gonna be no movement on that.

And look to the point, the things that I've heard is we need to end permitless carry.

Do you think any of these people that I just listed I could list here, do you think any of them would care about carrying a gun?

Not carrying a gun if they didn't have a permit?

- Every enforcement person who's come on the show in the last year and a half of all stripes of all political persuasion have said we have too many guns.

The guns in the cars were are driving the break-ins and driving- I mean they've really pushed back on that idea that it wouldn't have any impact.

I've got 30 seconds for Josh.

- Yeah.

And we'll have y'all back.

- It's more than just the guns, right?

The guns are a big, big, big problem in Tennessee, but when you put them as available as they are in the numbers that we have them in a community that has been ravaged by poverty, that has been desegregated in its education system, that has been disinvested for the time, where there's little economic opportunity, where there are young people, across this planet, where there are young people who don't have opportunity, there is violence.

And when you put guns close by, you get what we have in Shelby County.

- I appreciate you both being here.

We could do this for another hour, but I really do appreciate it.

I appreciate the conversation and the sharing of ideas.

That is all the time we have this week though.

Join us again next week.

We've got coming up soon the interim president of CBU Kenneth Robinson, long time ahead of the United Way.

If you missed any of the show, go to iTunes, Spotify, wherever you get the podcast, WKNO, Daily Memphian, and it's everywhere.

Thanks very much.

We'll see you next week.

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