Constitutional Amendment 1 — Bail
Lean: No Close call Prudential judgment November 3, 2026Plain summary
Yes. Lets a judge or magistrate hold some accused people with no bail before trial when the proof is evident or the presumption great, and requires the judge or magistrate to record the reasons for granting or denying bail. It covers six named crimes and every other offense for which, under Tennessee law as of November 3, 2026, a person convicted could not be released before serving at least 85% of the sentence. Under current law that includes reckless homicide, criminally negligent homicide, aggravated burglary, and a third or later felony drug sale, along with many violent and sexual felonies.
No. Keeps capital-only denial of bail under that same proof standard. Second-degree murder, aggravated rape, and acts of terrorism that do not cause a death stay bailable as of right even when the proof is evident. Aggravated rape of a child and grave torture already carry a possible death sentence for adults under current statutes, so whether today's capital-offense exception reaches them is an open legal question. Money bail can still be set, and excessive bail is still forbidden. No is current law, not a neutral abstention.
Stated facts
Senate Joint Resolution 25 substitutes Article I, Section 15. Prisoners stay bailable except for the listed offenses, and only when the proof is evident or the presumption great. The judge or magistrate must place the reasons for granting or denying bail in the record. Category (7) is every other offense for which, as of November 3, 2026, a defendant, if convicted, could not be released before at least eighty-five percent of the entire sentence. The amendment names no Code section. Read against the 2025 Tennessee Code, Tennessee Code Annotated section 40-35-501, that description includes subsection (cc): reckless homicide, criminally negligent homicide, voluntary manslaughter, vehicular homicide other than by intoxication, aggravated assault, aggravated burglary, aggravated robbery, aggravated kidnapping, and a Class A, B, or C felony drug manufacture, delivery, or sale after two or more prior such convictions. The floor there is 85 percent: 100 percent, less up to 15 percent for program credits. The one 2026 bill that would have widened subsections (bb) and (cc), SB1929/HB2465, was not enacted, and no other 2026 change was found. In Tennessee, magistrates include judicial commissioners, who are not judges. Under section 40-1-106, magistrates include judges of the general sessions and higher courts, judicial commissioners and county mayors in their counties, and municipal or city court presiding officers. Judicial commissioners set bonds under the law and the guidelines of the presiding general sessions judge. A law license is required only in specified counties, such as those over 800,000 people. Section 40-11-102 still says non-capital defendants shall be bailable. The amendment text omits a detention hearing, a right to counsel, a danger or flight finding, a time limit, and a right of review. Review under section 40-11-144 and Tennessee Rule of Appellate Procedure 8 is statute and court rule, not part of the amendment. A No keeps capital-only denial plus money bail. Section 40-11-118 says bail must be set as low as necessary to reasonably ensure safety and appearance, and ability to pay shall not be considered. Article I, Section 16 forbids excessive bail. No count of how often money bail detains a person was found, and none is assumed.
Lane table
| Lane | Yes | No (current law) | Scripture |
|---|---|---|---|
| Protect community / punish evil Scripture command | Stronger | Under-protects | ; ; ; |
| Due process / proof / hearing both sides Scripture command The proof bar is in the text. A hearing, counsel, and a right to answer are missing. | Mixed | Stronger on liberty | ; ; ; ; ; |
| Custody pending judgment Prudential judgment Leviticus 24:12 and Numbers 15:34 are a thin custody precedent. Numbers 35 shows that a liberty restriction for a lesser homicide is not foreign to Scripture. It is not a warrant for detention without a hearing. Grade this as custody pending judgment, not as punishment before a verdict. | Mixed | Capital only | ; ; |
| Impartial judging Scripture command Deuteronomy 1:16-17 belongs here, as impartial judging. It is not the accountability test. | Reasons required | No reasons required | |
| Restraint of civil authority Scripture command The five tests run on Yes and on No. WCF 20.4 and WCF 23.1: the power God ordained and the liberty Christ purchased mutually uphold and preserve one another. Fit is prudential and never outweighs a clear command. The close-call tiebreaker is a separate prudential rule and does not cite WCF 20 as its warrant. | Mixed | Under-protects | ; ; |
| Test: Legitimate purpose Scripture command | Stronger | Under-protects | |
| Test: Justice to the individual Scripture command The proof bar is in the text. A hearing and counsel are missing. Exodus 23:7 names the cost to a presumptively innocent man. It is the principle here, not a command breach. WLC 144-145. | Weaker | Stronger on liberty | ; ; |
| Test: Proportion Scripture command The six named crimes fit the gravity. Category (7) reaches reckless homicide, criminally negligent homicide, and other lesser offenses, with no danger finding. Deuteronomy 25:2 enters only by analogy, because it governs punishment after a verdict. | Mixed | Narrower | |
| Test: Fit Prudential judgment Prudential. The list is frozen, and it is broad. The text requires no danger or flight finding. This is not a least-restrictive-means test and it does not outweigh a clear command. | Mixed | Narrower | |
| Test: Accountability Scripture command | Reasons required | No reasons required | ; |
Lanes in tension: Protect community / punish evil versus Justice to the individual / due process.
Counted gaps
Protections the text omits. They count against the measure and do not change the lean into a condition.
- A real detention hearing with counsel is not spelled out in the amendment. There is no right to answer the charge at the bail decision. ; ; ;
- The text requires no finding of danger or flight risk. Denial may rest on the charge plus proof that is evident or a presumption that is great.
- The text sets no time limit on holding a person without bail before trial.
- The amendment text includes no right of review. Review that exists today sits in statute and court rule, which can change without a vote of the people.
- Category (7) reaches offenses below the six named crimes, including reckless homicide and criminally negligent homicide, on our reading of the current statutes. ; ;
Watch notes
These notes do not change the lean.
- Whether later statutes or court rules give a hearing with counsel and a right to answer.
- How "proof is evident or the presumption great" is read for charges that are not capital.
- Whether Article I, Section 9 is applied to these bail determinations. This brief does not credit Yes with those protections, because the amendment does not write them.
- In Tennessee, magistrates include judicial commissioners, who are not judges, and county mayors.
Lean and why
Lean: No. Prudential judgment Prudential judgment. Scripture doesn't settle it; Christians may vote either way. Amendment 1 would let a judge or magistrate hold some accused people with no bail before trial when the proof is evident or the presumption great, and would require the judge or magistrate to record the reasons for granting or denying bail. It covers six named crimes, including second-degree murder, aggravated rape, terrorism, and torture, plus every other offense for which, under Tennessee law as of November 3, 2026, a person convicted could not be released before serving at least 85% of the sentence. Under current law that includes offenses such as reckless homicide, criminally negligent homicide, aggravated burglary, and a third or later felony drug sale, along with many violent and sexual felonies. In Tennessee, magistrates include judicial commissioners, who are not judges. The text leaves out a detention hearing, a right to counsel, a finding of danger or flight risk, a time limit, and a right of review. Scripture gives no command of liberty pending trial, and the breadth of category (7) is a proportion and fit cost, not a breach of a command. The power may be exercised by a magistrate, including a non-judge judicial commissioner, and its procedural checks sit in ordinary law. On this close call the published tiebreaker prefers the option that adds less unchecked power, so the lean is No. That presumption weighs the danger of overreach above the danger of under-protection; voters who weigh protection higher have good reason to vote Yes. The under-protection cost of No is real and it is not minor: second-degree murder, aggravated rape, and acts of terrorism that do not cause a death stay bailable as of right even when the proof is evident; whether aggravated rape of a child and grave torture, which carry a statutory death sentence for adults, already fall under today's capital exception is an open question. A Yes vote, aimed at protecting neighbors from grave harm, is also a good-conscience vote. Scripture: ; ; ; ;
Overreach check
A biblical end does not justify an unjust means. Yes adds a power for a judge or magistrate to deny bail. The text keeps a proof bar and recorded reasons. It does not add a hearing, counsel, a danger finding, a time limit, or review, and category (7) is broad on our reading of the current statutes. The tiebreaker therefore leans No.
Caveats
This is our reading of the amendment text and current Tennessee statutes. A few legal questions are still open: whether probation narrows category (7), and how it interacts with T.C.A. § 40-11-102. In Tennessee, a blank on an amendment works like a No for anyone voting for governor (Tennessee Constitution, Article XI, Section 3; Tennessee Secretary of State). This is the counting rule. It is not a request to vote. Careless denial remains sin. The lean is not built on Leviticus 24:12 or Numbers 15:34.