Before Tennessee Rewrites Its Constitution on Bail

For more than 200 years, the Tennessee Constitution has guaranteed a simple principle: people are bailable except in capital cases. That protection has existed since Tennessee’s first constitution in 1796 and reflects a core American belief about liberty and the presumption of innocence. Few constitutional provisions have remained unchanged as long as Tennessee’s bail clause.

In 2026, Tennessee voters will be asked to decide whether to narrow that protection through a constitutional amendment known as Senate Joint Resolution 25 (SJR25). The amendment would dramatically change how Tennessee treats people who have not been convicted of a crime.

SJR 25 would replace that long-standing protection with a broad system of preventative detention. The more closely one reads the amendment, the clearer it becomes that this is not a minor adjustment — it is a significant shift in how Tennessee approaches pretrial justice.

What the amendment actually does

Supporters of the measure understandably often focus on the most serious crimes — terrorism, aggravated rape, and others. But Tennessee courts already have the ability to deny bail in capital cases when the proof of guilt is evident or the presumption is strong.

The amendment goes much further by adding a broad catch-all category that denies bail for:

“Any other offense for which, as of November 3, 2026, a defendant, if convicted, could not be released prior to the expiration of at least eighty-five percent of the entire sentence imposed.”

That single line sweeps in a wide range of offenses tied to Tennessee’s 85 percent sentencing laws and gives prosecutors — not judges — enormous influence over who remains in jail before trial simply through charging decisions that trigger the 85 percent rule.

The amendment also creates a moving target. By tying detention eligibility to Tennessee’s 85 percent sentencing category, future legislatures could expand the list of non-bailable offenses simply by adding crimes to that category. In effect, voters would be handing future lawmakers the ability to expand preventative detention without another constitutional vote.

Why this is such a departure from Tennessee’s tradition

At the heart of Tennessee’s bail system is the fundamental idea that people are held accountable for what they have done, not for what someone predicts they might do.

That principle is closely tied to another foundation of American justice — the presumption of innocence.

People accused of crimes are presumed innocent unless and until the government proves guilt beyond a reasonable doubt. Bail exists to balance that presumption with the need to ensure defendants appear in court, not to punish them before conviction.

SJR 25 moves Tennessee toward a preventative-detention model in which individuals may be jailed based on predictions about future behavior — a significant break from how the state has historically treated pretrial liberty.

What happens in states that adopt preventative detention

We do not have to speculate about the likely outcome. Other jurisdictions that adopted similar systems experienced the same pattern: pretrial detention increases, prosecutors file far more detention motions than anticipated, jail populations grow rather than shrink, case delays worsen as more defendants wait in custody, and costs shift to counties and taxpayers.

The federal system offers a clear example. Before preventative detention was introduced in the 1980s, roughly 24 percent of federal defendants were held pretrial; today that figure exceeds 70 percent. Once the tool exists, it tends to be used more frequently and more broadly.

New Jersey experienced similar trends as well. Prosecutors filed more than 19,000 detention motions in the first year of their reform. There is little reason to believe Tennessee would experience a different outcome.

The cost problem few are discussing

Preventative detention is expensive. It requires additional hearings, more court time, more jail capacity, and expanded supervision resources.

Tennessee counties already struggle with crowded jails and tight budgets. Expanding non-bailable offenses would likely increase pretrial detention, lengthen jail stays, require additional judicial resources, and shift costs to counties without new state funding.

In effect, the amendment risks creating an unfunded mandate that local taxpayers would ultimately absorb.

Does it improve public safety?

There is also little evidence that preventative detention meaningfully reduces crime. Crime trends are driven by many factors — policing, prosecution, sentencing practices, and community conditions — not simply by detaining more people before trial.

New York provides a useful comparison. Over a 26-year period, the state reduced crime by roughly 66 percent without adopting dangerousness-based preventative detention. Meanwhile, the federal system dramatically expanded pretrial detention without producing comparable safety gains.

The assumption that jailing more people before trial will reduce crime is far from settled.

Tennessee already has tools to protect the public

Under current law, Tennessee judges already have significant authority to protect the community. Courts can set appropriate bail, impose strict conditions of release, order no-contact provisions, revoke bail when violations occur, and deny bail entirely in capital cases.

Nothing in existing law prevents courts from addressing serious risks. The amendment does not close a gap so much as introduce a new detention system Tennessee has never used.

Why this deserves careful reconsideration

Constitutional amendments are usually used to expand rights, not remove them. SJR 25 would narrow a protection Tennesseans have had since the founding of the state — the guarantee that people are bailable except in the most serious circumstances.

Once a constitutional protection is removed, restoring it is extraordinarily difficult. Reversing a constitutional amendment requires another statewide vote and years of legislative action. SJR 25 is broad, costly, and permanent: it shifts significant power to prosecutors, is likely to expand pretrial detention, and places new financial burdens on all 95 counties.

Tennessee can address legitimate public-safety concerns through targeted statutory reforms, improved court efficiency, and faster case processing without rewriting a core constitutional protection.

Before making a permanent change of this magnitude, voters should understand exactly what is being altered before deciding whether to change a constitutional protection that has existed since Tennessee’s founding.