Statement to the Tennessee State Senate Judiciary Committee

I want to thank you for the invitation to speak today on a matter of such great importance. It is always an honor and a privilege to contribute to the development of criminal justice policy.

The first duty of any government is to provide for the safety and security of the citizenry—something that is done primarily through criminal justice systems. The public’s safety should be the most important consideration of the justice system at every step of a criminal case’s progression—including the pretrial release inquiry.

In the ideal system, that inquiry would provide an opportunity for the incapacitation through detention of defendants judged to pose a significant risk of reoffending during the pretrial period. A system that categorically prohibits criminal court judges from taking such a step for the benefit of the public’s safety is, by definition, falling short of its primary duty to its people.

To illustrate that point, I’d like to relate a story from my home state of New York, where I have spent much of the last five-plus years pushing back1 against what are perhaps the most misguided pretrial release rules in the country:

In the fall of 2022, a 40-year-old mother of two named Kaira Bennefield was savagely beaten by her husband in their home. There was no doubt as to her husband’s guilt because the beating was captured by their in-home security camera. Mrs. Bennefield would go on to post the footage of the assault on Facebook later that day in an excruciating cry for help. New York’s criminal justice system should have been first in line to answer that call. The police did their job in arresting Keaira’s husband. Prosecutors did their job in charging him. But because New York State law prohibits judges from remanding defendants like Adam Bennefield based on public safety risk—even in cases involving brutal domestic violence—this ruthless defendant (who had previously been convicted of kidnapping an old girlfriend at gunpoint) was released. The next morning, he found Keaira and shot her in the head in front of their children.2

So certain was Keaira Bennefield of the threat to her life—a threat her government should have protected her against—she was wearing a bullet-proof vest when she was shot on her way to take her kids to school.

What happened to Keaira Bennefield is not anomalous, sadly. A study done by the Bureau of Justice Statistics looked at those convicted of violent felonies in 75 large urban counties between 1990-2002. The study found that 12% of the offenders were “on release pending disposition of a prior case.”3 In my home city of New York, we saw similar numbers as indicated in an analysis published by the Mayor’s Office of Criminal Justice, which reported that in the months between January 2020 and June 2021, the share of violent felony arrests throughout the city constituted by those with open cases hovered at around 25%.4 Many of these serious crimes could have been

avoided if judges in the state had been given the discretion to exercise their judgement and determine the whether it would be appropriate to release particularly risky defendants prior to the disposition of their cases.

The questions you should be asking those opposed to the measure in question are:

- Why should the government be prohibited from incapacitating dangerous defendants who pose a high risk of victimizing their communities during the pendency of their criminal cases?

- On what basis should the state of Tennessee maintain a status quo that ties the hands of judges by stopping them from preventing the pretrial release of even the most hardened habitual offenders—even when it’s clear that they are virtually certain to continue committing crimes as soon as they’re out?

One argument I suspect you’ll hear in opposition to this amendment proposal is that it will be costly. But I urge you to consider that crime, too is costly. A 2010 study of crime-specific costs to society noted that “In the United States, more than 23 million criminal offenses were committed in 2007, resulting in approximately $15 billion in economic losses to the victims and $179 billion in government expenditures on police protection, judicial and legal activities, and corrections.”5 That paper detailed the low-end estimates for the social costs of a murder at nearly $9,000,000. The low-end estimate of rape/sexual assault was more than $240,000; and the low-end cost of a robbery was estimated at more than $42,000.

There is also a point to make here about fundamental fairness. In many of the states that have experimented with various types of bail reforms, one of the chief complaints—usually of more “progressive” advocates—is that systems that heavily rely on cash bail make it so that dangerous-but-well-off defendants can buy their releases while harmless-but-indigent defendants get stuck behind bars. This is a critique I’m actually sympathetic to. The best way to address it, however, is to reorient the pretrial release inquiry around risk, rather than around access to wealth. These are arguments I fleshed out in recent testimony on the matter delivered to the U.S. Commission on Civil Rights, which I’d like to incorporate by reference here.6 Giving judges the discretion to jail defendants, not because they can’t access $500, but because they have no business walking among the innocent is a step in the right direction.

The sad reality is that a subset of those charged with crimes are not one-off criminals, but habitual offenders who pose an ongoing threat to their communities. That threat isn’t suspended during the pretrial period, which is why judges should be given the discretion to mitigate the threats in question.

Thank you, and I look forward to answering any questions you may have.