By Connie Reguli, J.D.
If you go to the Secretary of State website you will find a description of the THREE constitutional amendments that will appear on the November 2026 ballot.
I am going to tell you about AMENDMENT ONE – The Court’s discretion to DENY BAIL prior to conviction. The Website reads:
Constitutional Amendment #1
As proposed by SENATE JOINT RESOLUTION NO. 919 (113th) & SENATE JOINT RESOLUTION 25 (114th)
Summary:
This amendment changes Article I, section 15 of the Tennessee Constitution by allowing a court to hold a defendant without bail before trial when that defendant is accused of: an offense punishable by the death penalty, an act of terrorism, second degree murder, aggravated rape of a child, aggravated rape, grave torture, or any crime for which a convicted person would be required to serve eighty-five percent of their sentence. This amendment requires courts to state on the record the reasons for their decision to grant or deny bail in those cases.
Question:
Shall Article I, Section 15 of the Constitution of Tennessee be amended by deleting the following:
That all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great. And the privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or invasion, the General Assembly shall declare the public safety requires it.
and substituting instead the following:
(a) All prisoners shall be bailable by sufficient sureties unless for the following when the proof is evident or the presumption great:
(1) A capital offense;
(2) An act of terrorism;
(3) Second degree murder;
(4) Aggravated rape of a child;
(5) Aggravated rape;
(6) Grave torture; and
(7) 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.
(b) In any case in which bail for an offense listed in subsection (a) is granted or denied before conviction, the judge or magistrate shall place in the record the judge’s or magistrate’s reasons for granting or denying bail.
(c) The privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or invasion, the General Assembly shall declare the public safety requires it.
WHY YOU SHOULD VOTE NO………………
1 – “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.”
YOU, as an average Tennessee voter, have NO IDEA what that means. You must ask yourself, do I know what “crimes” are covered here? If you do not, you must VOTE NO.
The truth is that “any other offense” will cover about multiple criminal offenses not listed in the amendment.
This website describes some of them. Another website provides this list:
- Aggravated assault (involving a deadly weapon, strangulation, or attempted strangulation)
- Aggravated assault that results in serious bodily injury
- Aggravated assault against a first responder or nurse if the offense involves a deadly weapon, strangulation, or attempted strangulation
- Aggravated assault against a first responder or nurse resulting in serious bodily injury or death
- Voluntary manslaughter
- Vehicular homicide as a result other than driver’s intoxication
- Reckless homicide
- Aggravated kidnapping
- Involuntary labor servitude
- Trafficking persons for forced labor or services
- Aggravated robbery
- Aggravated burglary
- Aggravated arson
- Possession of a firearm during the commission or attempt of a dangerous felony
- The manufacture, delivery, or sale of a controlled substance where the offense is classified as a Class A, B, or C felony, and the person has two or more convictions for the manufacture, delivery, or sale of a controlled substance classified as a Class A, B, or C felony prior to or at the time of committing the new offense
These offenses, while sounding serious, can be a first offense, or even be a crime brought with insufficient evidence.
2 – This constitutional amendment also creates TWO new standards of proof: “the proof is evident or the presumption great”
If you do not understand “the proof is evident” or “the presumption is great”, you must VOTE NO ON AMENDMENT ONE. Now I am not saying that “the proof is evident or the presumption is great” was invented by the Tennessee General Assembly. It was not. Other states, like Arizona, have enacted constitutional amendments denying bail for multiple offenses using this standard. In Arizona, the Courts said the “proof evident and presumption great” standard requires a finding that all of the evidence, fully considered by the court, makes is plain and clear to the understanding…[and] dispassionate judgment of the court that the accused committed one of the offences enumerated.” THIS sounds like a trial “on the merits” of the case WITHOUT the benefit of defendant receiving a copy of the State’s evidence in discovery and WITHOUT exercising his right to a jury trial on the facts of the case.
Of course, if you are not an attorney – you may not even understand what I mean by “standard of proof”. So let me elaborate. In law, there is ALWAYS a burden of proof and a standard of proof. In criminal law, the STATE always has the burden of proof. The STATE must prove their case. The defendant has NO burden to prove their innocence. The STATE must prove their case by “beyond a reasonable doubt” on EVERY element of the crime. This is the highest standard of proof in law. Also in criminal law, the defendant always has the right to a jury on the elements of the crime.
When a citizen is arrested or indicted for a crime, the STATE must have “probable cause” of a crime. This probable cause determination is made by a magistrate in an arrest warrant and by a grand jury in an indictment. This is a lower burden of proof in criminal prosecution. The magistrate decides is there is probable case based on the sworn testimony of the police officer or complaining citizen. In Tennessee’s secret grand jury process, twelve citizens are lead by the prosecutor (district attorney) to see the specific criminal code that the STATE wants to rely on and hears the evidence of law enforcement or witnesses. This is ALL done in SECRET and the defendant is never even able to get a transcript or know WHO testified against them. There is no protection against false testimony or false evidence or an incompetent prosecutor.
Many defendants charged with crimes are NOT guilty. That is just the truth.
Now the constitutional amendment creates two new standards of proof that have never been tested by litigation and the Tennessee appellate process.
Back to Arizona. The Arizona, the citizens passed Proposition 103, which denied bail for a designated line of offenses. The rhetoric to the citizens and proposed amendment was to “protect public safety by preventing defendants from committing future crimes.” See State of Arizona v. Martinez, AZ. Sup. Ct. February 9, 2017. Similar to Tennessee’s proposed amendment, it required a full blown adversarial hearing which did not require a finding that the defendant “posed a danger to specific individuals or the community”, it did require the same standard proposed in Tennessee, that “proof is evident or presumption is great” that the person committed the offense charged. The Arizona Supreme Court found that the denial of bail on on this standard was facially unconstitutional under a “legitimate and compelling” standard of review when the law was challenged for a denial of bail on the offense of committing a sexual conduct with a minor. If the state’s “regulatory” intent was to protect the public, and not to punish the accused, the Arizona constitutional requirement was “not narrowly focused given alternatives that would serve the state’s objective equally well at less cost to individual liberty.”
Also, consider the requirement on the court system to make the determination of “proof is evident or presumption is great” – this will require a full blown evidentiary hearing on the evidence the State has acquired to prosecute the defendant. Often, the State does not even turn over their evidence to defense counsel for months. Will the courts require defendants to proceed through this evidentiary hearing without the State’s evidence, which includes physical evidence taken into evidence (like weapons, biological samples), forensic testing (which often takes months), witness statements, and other investigation results.
There are some defense lawyers that will say “yeah” – because they know the State often is lacking evidence needed to prosecute.
Others defense attorneys will say “nay” because this is a mini-trial, denying their client the right to a jury trial on the factual findings of the case. Tenn. Rules of Criminal Proc. 23. So, a defendant will be required to permit a judge (without a jury) to rule on the facts of his case. The same judge that will preside over the jury trial. It is nonsense to believe that the judge will not be influenced by what he has already heard in the bail hearing. The judge will have already been required to make an order with findings of facts. Then in a jury trial, he will be ruling on evidence and jury instructions.
3 – If you don’t know, VOTE NO.
This constitutional amendment carries complex implications. Sometimes citizens just don’t understand the long term effects of changes to the constitution. In this case, there will be fiscal implications that the taxpayers will be required to carry: increased court time and increased incarceration rate. There will be pressures put on defendants to settle with pleas that do not reflect the truth but relieve defendants of long-term incarceration before they even have a trial. There will be innocent citizens incarcerated for months and years before their trials.
I will leave you with these comments made by Tennessee legislators. Remember neither Sen. Jack Johnson nor Rep. Justin Pearson are lawyers and have never defended someone accused of a crime. Your legislators have a duty to educate you and if they cannot you should not endorse their decision. IF YOU DON’T KNOW, VOTE NO.
ARGUMENTS FOR AND AGAINST AMENDMENT ONE
Supporters of Amendment 1 say it will benefit public safety by keeping dangerous individuals in custody before their trial. Tennessee Voices for Victims Co-Founder Verna Wyatt said, “People are sick of hearing stories about innocent people being killed, raped, or severely injured by someone who’s out on bond.”[4] State Sen. Jack Johnson (R-27) stated that Amendment 1 would give the courts the tools they need to create a safer society. He said, “Our number one job up here is public safety, and it is to equip our court system with the tools they need to keep our community safe. Unfortunately, they don’t have those tools right now, or all that they need. They’re hamstrung by the constitution.”[5]
Jeffrey Clayton of the American Bail Coalition, who opposes Amendment 1, stated that denying defendants a right to bail will not benefit public safety. He said, “There’s been no academic research that supports the use of preventative detention as a defective crime control policy.”[4] State Rep. Justin Pearson (D-86) said, “Judges are imperfect people with their own biases as well that they bring into the courtroom, and there can again be a disproportionate harm on poor folks, a disproportionate harm on Black folks, on Latino folks.”[6]
By Connie Reguli, J.D.
After 28 years of protecting Tennessee citizens from their government, I was falsely arrested and convicted on a crime that did not exist. When I beat them, they stole my law license. Their is no First Amendment protection for attorneys in the State of Tennessee.
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