Cash Bail Lawsuit Names Gentry, Not Judges

American Civil Liberties Union Executive Director Hedy Weinberg announcing the filing of a lawsuit in federal district court on Thursday, February 6, 2020.

NASHVILLE, TN – Criminal Court Clerk Howard Gentry is named 44 times in a federal lawsuit filed last week. The Nashville Community Bail Fund (NCBF) is suing to stop Gentry from enforcing local court Rule 10(B).

Spokespersons from American Civil Liberties Union of Tennessee, the American Civil Liberties Union Foundation, Civil Rights Corps, Choosing Justice, and the Nashville Community Bail Fund spoke about the lawsuit at American Baptist College Wednesday, February 7.

Gentry told the Tribune he was perplexed to be named as the plaintiff. “Why would they come after somebody who supports everything they try to do rather than the judges who are the reason for all the fees and fines?” Gentry asked.

Gentry publicly supported pretrial release programs and his office has led efforts to restore revoked drivers’ licenses. He said he couldn’t make policy or rules. “I don’t have the authority to do anything other than what I am ordered to do and that is what I do,” he said. He was warned a lawsuit was coming but didn’t know he would be in the crosshairs.

Bail money is supposed to be returned once the defendant shows up in court, but 10(B) forces people to sign cash bail over to Gentry to pay fines fees, court costs, judgment debts, restitution, and agree to let the court use the money for any future garnishment, including interest.

Administrative costs and fines have nothing to do with state laws concerning bail. Local rules like 10(B) are enforced by a local clerk the same way poll taxes were imposed all over the South in the Jim Crow era. They were designed and used to keep poor blacks from exercising their constitutional rights.

Theoretically, garnishment is just an impartial administrative tool of justice. However, its critics claim it’s a racket that punishes people who are too poor to navigate a pay-to-play court system.

“This rule creates a two-tier system of justice, one that incarcerates the poor, the most impoverished, and in which the wealthier are able to be freed and go home to their families,” said Hedy Weinberg, executive director of the ACLU of Tennessee.

The plaintiffs say that the criminal justice system imposes two kinds of punishment from the moment a poor person gets arrested whether they are innocent or guilty of the charges they face.

If you lose your freedom, even for a short time, you risk losing your children, family, home, job, car, or health. When a person goes to jail they start acquiring debt. When they emerge from the criminal justice system they are almost always poorer than when they entered it.

In 2019 about 900 people a day were locked up in pretrial detention here, most because they couldn’t make bail.

Between January 2016 and September 2019 the complaint claims defendants lost $154,641.77 from garnished bail money paid to the Criminal Court Clerk’s office. None of that money had to do with showing up in court— the only reason we have a bail system.

There were about 25,000 arrests in Davidson County last year. Of those booked into county jail, 10,938 people (44%) stayed there until their court date. Twenty-three percent, 5718 people, were released on their own recognizance without having to post bail before their trial.

Founded in 2016, the NCBF is a non-profit that bails people out of jail who lack the means to free themselves. The fund has posted $2 million in bail for more than 1,000 arrestees; half were not convicted.

But because of Rule 10(B) the fund dropped it limits on bail per case from $5,000 to $2,000 and capped its monthly spending on bail at $20,000. Previously they spent more than $67,000/month on bail. They are afraid of future garnishments Rule 10(B) can take.

“In our country you are presumed innocent until proven guilty, and you have a fundamental right to your liberty prior to trial. And this rule burdens that right. So by filing this lawsuit, we hope to remedy those injustices and get relief for everybody in Nashville,” said Dawn Deaner, Executive Director of the Choosing Justice Initiative.

Through a proxy, the Tribune queried all six Criminal Court judges from Davidson County. They are not reachable via email or telephone. We asked them to confirm the plaintiff’s account of attempts to resolve the problem without going to federal court. All of the judges declined to comment.

“Controlling for other factors, pretrial incarceration is the single greatest predictor of a conviction: many people plead guilty—regardless of actual quilt, or the availability of viable defenses—simply to end the ordeal of pretrial incarceration,” alleges the complaint.

Plaintiffs say the garnishment rule violates due process under the Fourteenth Amendment and the excessive bail prohibition under the Eighth Amendment.

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