- (female announcer) Production funding for Behind the Headlines is made possible in part by the WKNO Production Fund, the WKNO Endowment Fund, and by viewers like you, thank you.

- District Attorney Steve Mulroy tonight, on Behind the Headlines.

[intense orchestral music] I am Eric Barnes with the Daily Memphian.

Thanks for joining us.

I am joined tonight by Shelby County District Attorney General Steve Mulroy.

Thank you for being here again.

- My pleasure.

- Along with Aarron Fleming, who covers criminal justice and public safety for us at the Daily Memphian.

- Thank you.

- Let's start with, we'll talk a lot about many things that we can get to and we appreciate you being here again.

The legislative session that ended, there were a lot of criminal justice-related changes, many of them coming from local, Brent Taylor, John Gillespie, sponsored a lot of things, some got passed, some didn't.

We'll try to get through a bunch of those.

- Sure.

- One of those is a change to the way bail and the considerations that can be weighed in terms of setting bail.

And there's some real confusion and partly I'll ask you as DA and I'm gonna also ask you to go back to your time as a professor to explain some of this.

- Sure.

- But remind everyone, because bail and bail setting and people released on bail who recommit offenses however many times and however prominent or not prominent that is, is a source of immense frustration for a lot of people, a lot of politicians, and a lot of the think that the initiatives that went forward or tried to go forward at the legislature.

- Right.

- So specifically, I'm gonna do my layman's understanding of how bail is set and then you're gonna correct me.

Bail can be set by the judicial commissioners who work underneath the judges and are appointed by the Shelby County Commission.

- Right.

- Bail can be set by the judges and then your office cannot set bail, but can argue for bail setting of various levels.

Is that a quick snapshot of how bail gets set?

- That's correct, yeah.

- Okay.

What has changed with this new bill that says that a defendant's ability to pay can now not be considered in setting bail.

And this was controversial for some people because some people said, "Hey, you can't set a million dollar bail "for somebody who has $100 in the bank or has $100 in their pocket for a minor offense."

Other people saying, "Wait, you know, "if somebody committed a or is accused "of committing a very violent offense "or really horrific offense, "their ability to pay shouldn't be considered.

"They should have the highest possible bail set and everything in between."

What has changed for you with this new law?

- Well, you started with the one bail provision that was passed in the last legislative session that I really have the most problem with.

Some of the other things that have been passed, I actually supported, in some cases I gave the legislator the idea.

This one, I think I do have a concern.

So the purpose of bail is not to express some sort of symbolic outrage at the seriousness of the offense charge.

The only purpose of bail is to make sure that the person comes back to court.

And the only thing we should be considering is, are they likely to re-offend?

Are they a danger to the community or are they likely to skip town or not show up for court?

And both the constitution and the Tennessee bail statute says that bail is the last resort.

The presumption is since someone hasn't been convicted of a crime, we let them out until there's been an adjudication.

So, you know, if the judge considers the person a danger to the community, likely to re-offend, then you need to set an unaffordable bail and you should be able to consider the person's ability to pay when making sure that it is an unaffordable bail.

If the judge is convinced that the person is not likely to re-offend and is not a danger to the community, then you don't want them languishing in 201 Poplar for 18 months or longer, however long it takes for the case to eventually be resolved for the simple reason that they couldn't afford the cash bail amount, right?

And that really is, I think, a matter of constitutional concern as well as policy concern.

There are multiple federal district court decisions around the country, including two in Tennessee, that say you must consider the defendant's ability to pay when setting bail for precisely that reason.

- So will this end up in court to resolve?

Is that- - It's very possible that there'll be a court challenge to it.

- You said some things were passed around bail that you did support.

What were those?

- Sure.

Well, I'll give you one example.

[clears throat] There was a law passed that made it a separate violation, a Class A misdemeanor to violate the conditions of bail.

Because ordinarily, if you violate the conditions of bail, we prosecutors may not have a chance to do anything about it until the next court date, so that could be weeks down the line.

But if we find out that someone has violated the conditions of bail, now with this new law, we can do an immediate arrest and bring them to court right away.

Now, that was sponsored by Senator Brent Taylor and I gave him that idea.

I was the one that suggested that they do that, which is an idea that I got from Nashville District Attorney Glenn Funk.

So we're all on the same page there.

There was a law that said that public safety should be the first consideration in setting bail.

Totally agree with that.

For me, the analysis is simple.

Are they likely to re-offend, in which case set a high bail, make sure it's unaffordable for them.

If they're not likely to re-offend, then set a bail that is affordable because you don't want them languishing in jail simply because they don't have that much money in their pocket.

I mean, if you have two defendants committing this, you know, accused of the same crime under the same circumstances, and one is a hedge fund manager and, you know, one works at McDonald's, you don't want the amount of money to determining whether they are free or not free.

- That whole notion, one more for me and then I'll go to Aarron here.

That notion that public safety should be weighed in setting bail, that probably for a lot of people is like duh, right?

- Yeah.

I mean that's what they want.

Again, with these examples, however many there are, and we can talk about that.

But of people who have long records and who are maybe out on other charges and then they get released again and then something terrible happens or they are accused of doing something terrible.

Dive into it.

What changed in this law?

Does it give a specific criteria that you weigh or does it just- - No.

Public safety has always been on the table and it is something that judges can consider.

This just reinforces it and says that is the primary consideration.

It gives it special emphasis that it didn't have before, which I think is a good thing.

I myself have been saying for months, since last year, publicly, that the judicial commissioners need to lean into unaffordable bail more than they have been when there's a long criminal history for a particular defendant, because the criminal history suggests they're likely to re-offend.

So I do think it's a concern.

However, you know, you've alluded to it twice, the actual number of instances in which people re-offend while out on bail as a percentage of the crimes is actually very low.

So we don't wanna throw the baby out with the bath water.

We don't wanna overcompensate by locking everybody up because they don't have enough money in their pocket to pay an expensive bail.

We wanna find that right balance.

- Let me, and again, apologies to Aarron here, one more for me.

For whatever this number of incidents, and there's been some high profile ones, it angers people.

It's horrifying for the victims and the victim's family.

For you, do you look at that and say, "We messed up, we let someone out.

"We should have argued "for unaffordable bail in this circumstance and I wish we had."

- Whenever that happens, it's the system failure.

But I'm not so sure about we messed up, because in the vast majority of those high profile cases that people are rightfully, rightfully outraged about that you're alluding to, in the vast majority of those times, it happened in the first 72 hours by a judicial commissioner before our office even gets involved.

- The bail was set?

- Right.

Right.

So the bail was set by the judicial commissioner before we even got the case.

Under the system, the judicial commissioner sets an initial bail amount, and then within 72 hours, if they're still in custody, there's a bail hearing.

And that's the first time we have any say in the matter.

- Would you like that to be changed, that you got involved sooner?

- No, no, I don't actually think that needs to be changed.

What I think needs to happen is that the judicial commissioners should be looking more carefully at that initial stage at the criminal history.

And if there's a repeat criminal history, then the need to be setting unaffordable bail.

And we argue for that very often.

When we get to the bail hearing, we say, "Look, we need to increase the bail."

And we've done that in a lot of cases.

- All right, Aarron.

- So under this new law, like speaking to these judicial commissioners, like how, because now we can't consider a defendant's ability to pay, like how do you determine what's affordable and unaffordable for a defendant?

- I don't think it's clear, because the law leaves in consideration of the defendant's financial condition, right?

So how do you consider the defendant's financial condition without considering the defendant's ability to pay?

And I actually asked Senator Taylor that at a recent Crime Commission meeting, and one of the examples he gave was, if you think someone is a danger to the community, you might wanna consider their general wealth to make sure that the bail is unaffordable, right, which is something that I agree with.

But I think that still needs to be worked out.

And of course there's always the possibility of a court challenge.

But I do want to emphasize, I believe that judicial commissioners should be doing more unaffordable bail when there's a long criminal history.

But at the same time, we have, this legislative session, and in general, we have spent so much time talking about bail.

I think bail is 10 to 20% of the problem and it's getting 90% of the attention, 'cause I think there are other things that we need to be focusing on if we really wanna bend the curve on violent crime.

- How has that law, like how has that changed how prosecutors are doing, you know, bail hearings?

Has that changed anything that you've had to do or?

- Well, I've talked to my prosecutors about the fact that we've passed the law and of course we wanna honor the state law.

You know, we've talked about defendant's financial condition and, you know, how that could be relevant.

And there are ways that the defendant's financial condition can be relevant and considered without, I think, violating the current state statute.

You know, I think if you take a look at the legislative history and the debate behind that law, including the public remarks of Representative Gillespie and Senator Taylor, I think the real concern was there was this thing called the the Vera bail calculator.

And, you know, we had some concerns with the way the calculator worked as well and that it led to instances in which the bail was too low.

And I agree with that and I think that's the main concern and I think there's a way to work that out.

- You mentioned too much focus on bail, ten to twenty percent of the problem, not enough focus on the other 80 to 90%.

What are those things that we should be focused on?

- Well, the two things we need to focus on are A: increasing the clearance rate, which is the percentage of cases that are solved by law enforcement.

And then also, or reducing the recidivism rate, which is the percentage of times that a person re-offends, right?

- So let's do clearance?

- Yeah.

- What does that take?

I mean, your office, we just did story about how the number of homicide detectives and MPD, which you don't control, but it's down from where it was so that must have impacted.

How does that clearance rate, is it changed?

- I'm a big advocate for increasing the number of investigators in the force.

You know, we're not gonna get to the goal of 2,500 patrol officers, you know, anytime soon.

And I'm not sure that necessarily is the magic number, although I do think we need to have more patrol officers, but we really need more investigators.

And anything we can do to provide funding and resources for that to increase the number of investigators I think is important.

I also think a crime lab, a local crime lab would do a lot to increase our clearance rate.

You know, we used to have a crime lab in Memphis, it got moved over to Jackson.

I understand why the state did that, but we have the biggest need.

Nashville has its own crime lab.

There's no reason why we can't have it as well.

And we're gonna be, if we have it, we would be using it to supplement, not replace the good work that TBI is already doing.

There are types of testing that just aren't done right now that we need done in order to increase that solve rate.

And I think those are the kinds of things that we should be focusing on as well as bail.

- Is that take state money and state support to get a crime lab in Memphis?

- It wouldn't have to and we could completely fund it locally.

But I think if the state is concerned as they say they are over and over again, they're so concerned about a crime in Shelby County, the one thing they could do to help us would be to provide some startup funding, just a one-time infusion of funding so that we can get a building and some equipment and then city and county could do the annual operating expenses.

- Let's touch on recidivism.

Excuse me, I'll go back to Aarron.

You said that what, from your office's point of view, can you do to reduce recidivism?

And is there certainly someone out there listening to the show saying, "Well, he could lock people up for longer and set higher bail and so on?"

But I think you're gonna say there are other things.

- There are other things and things that have been proven and experienced in other jurisdictions to actually be more effective.

I'm a big believer that punishment needs to be swift and it needs to be certain.

It doesn't always have to be severe.

You know, far more predictive of deterrence is rather than the actual length of the sentence is the likelihood that the person will get caught and receive some sort of sentence.

So I'll give you an example.

We set a policy last year when it came to aggravated assaults.

And the policy is this, if someone points a gun at another person and pulls the trigger, regardless of what happens afterwards, they have to do some prison time.

Straight probation absent highly unusual circumstances is not gonna be on the table as a plea offer, and that's because there has to be that consequence.

Now exactly what the length of that sentence is, is not gonna be as important in terms of predicting the recidivism.

But there has to be that feeling of certainty that they will be caught and they will receive some sort of punishment.

Very often, if you've got people who have mental health issues or substance abuse problems, far more effective is giving them the mental health treatment they need or the substance abuse treatment that they need.

And that will be more predictive in terms of preventing them from doing repeat offenses.

So we need to do those kinds of interventions in addition to just regular prison.

It's not just locking them up.

It's a holistic approach, which in, you know, means job training and job placement and requiring that they maintain gainful employment and checking in on them.

And if they need mental health counseling or drug treatment, we get it for them.

You know, building all of those requirements robustly into the probation conditions, into our plea agreements to try to bend downward that curve of repeat offenses.

- Aarron.

- I wanna pivot a little bit.

But just speaking of working with cases and that sort of thing, obviously we just had Criminal Court Division 9 eliminated, and so I was curious like how that's going to affect like your office prosecutors, that maybe were in that courtroom and now have to sort of pivot.

- Sure, it's not gonna be all that terrible for our office, but I do think it's bad for the county.

And let me explain what I mean.

We will just take the prosecutors who were assigned to that vertical trial team for that court and we'll just reassign them elsewhere.

I mean, there's plenty of work to be done in the Shelby County District Attorney's Office so we will find work for all those prosecutors.

I do think it's unfortunate though that at the same time that the state is complaining about a supposed backlog in Shelby County, the next thing they do is to reduce our judicial capacity by 10%.

I don't really think that's particularly helpful, but it's done and we will adapt.

- What reason was given to you, if any, for reducing that court?

- Well there was a study done back in 2019 that suggested that Shelby County was slightly over judged by one judge.

Now there were some methodological flaws with that study.

The data is very old, it was pre-pandemic, and the very agency that did that study, the administrative office of the course themselves said more recently that they don't stand by it.

They, you know, they needed more time and more data.

But really what was happening was they needed a couple of judgeships elsewhere in the state and they wanted to keep it budget neutral.

And with the loss of Judge Boyd, they saw an opportunity to cut.

- Let's move on to a bill that passed, another bill that passed in criminal justice public safety, blended sentencing for juveniles.

Explain that.

I think you were a big supporter.

I don't know if the final language you are, but I know this concept had wide support across political spectrum in Memphis that the tools that judges and the DA had to either put a kid away as an adult or to treat them as a juvenile when at 18, 18 and a half, the whole record get wiped away.

Now there is a kind of more medium space that you all can work with.

- There's a middle ground approach.

And you're right, I was a big proponent of this during the campaign.

And as soon as I took office, I was beating the drums for it.

I'm glad that it got passed.

You know, the final language may not be exactly the language that I would've written had I had my druthers, but I do think the approach is an improvement.

And basically just the quick version of it is under the old system, you've had only two extreme approaches.

You can either take a kid, let's say they're, you know, 16 or 17, they've committed a medium-level offense.

You either ship 'em off to adult prison where the data shows they're more likely to re-offend when they come out.

So you're actually sending them off to crime college, right?

You're not helping.

You're not helping public safety.

Or you can keep 'em in the juvenile court system where there's a broader array of rehabilitative services, but you lose jurisdiction at age 19.

So if the kid's 17, you know, a year or two and then boom, you have to let 'em back out again.

And that's not necessarily good either.

So blended sentencing gives you that middle-ground approach.

You can keep them in the juvenile court system past the age of 19, maybe as old as up to age 24.

But, you know, nonetheless, you can either, you know, keep them in incarceration or, you know, intensely supervised probation.

And so you've got that middle-ground approach for those middle-ground cases.

And it provides the system the flexibility that we need.

It's worked well in other states and it's high time that we've had it in Tennessee.

I'm glad we're actually gonna do it.

- Let me go to Aarron.

- So I wanna pivot again.

I wanna ask you about, you've proposed this increase in penalties for having switches on guns with Mayor Paul Young recently.

And so I wanna ask, like what was mentioned was that, you know, the federal side, they can't handle all the cases that we're seeing.

And so what does that look like on the state side, as far as how many cases you guys are seeing and like are you gonna be able to handle an increased number of cases if that's kind of the goal?

- So the switches are those devices that convert a regular gun into basically a machine gun, right?

They make it automatic fire.

And we have an, unfortunately, a flood of them all over the county, right, and it's a real problem.

What I'm proposing is that possession of a Glock switch, which is already against the law in Tennessee, just be elevated from an E felony, which is the lowest type of felony, to a C felony, which is like the middle tier felony so that we'd have longer punishments for it, 'cause it's really a public safety threat.

The total number of cases that we would have to handle wouldn't change.

The federal government's gonna take a certain percentage of them.

They can't take most of them, right?

Most of them will still have to be prosecuted under state law by our office.

We meet weekly with the feds as part of an ongoing project called PSN.

And, you know, whatever cases that we can refer over to the federal government, we do.

They take as many as they can.

It'll be the same number of cases.

It's just that we will have a bigger club now.

We'll have the hammer of increased penalties for those Glock switches really, which do represent a real threat to public safety.

And I know I said earlier that we shouldn't always be focused on the length of the sentence, but I think this is an area where really the punishment doesn't fit the crime.

I think most people would agree that the Glock switches are such a threat, particularly in urban areas, that we need more than an E felony penalty.

- Could there be sentencing differences though between the federal and the state side as far as how much time somebody serves when they're caught with one of those?

- Absolutely.

So under the federal system, generally you'll get longer sentences, right?

And so moving it from an E felony up to a C felony will get us closer to what would happen under the federal government system.

- Speaking of, we'll stay with guns, the City of Memphis has a referendum coming up about essential, I'm gonna do a poor job of this, but essentially giving voters the option to outlaw assault weapons.

There's some other options on there.

We will be writing about more as we get closer to early voting and voting.

Jim Strickland, former mayor, now head of the law school at the U of M, said, at this table, you know, when this was proposed, I think last fall, said "Great, great idea.

"It's never gonna go into force.

It's not gonna be upheld by the constitution."

What's your take?

And can you even comment on it?

But what's your take on this referendum?

- Right, so I haven't really done exhaustive research on this.

I have spoken to proponents who say they think they have a legal theory as to why, you know, if it did pass then they could defend it in court.

You know, I don't know, but I know this, I like the idea, I like the policy.

And even if it only has a symbolic expression of our desire, I think it's an important step forward because the reality is that everyone understands this in Shelby County, the way things work in rural Tennessee just isn't the same here in Memphis and Shelby County.

And we have an epidemic of guns and the state really ought to let us opt out of this permitless carry stuff.

- One of the things with guns, and just three and a half minutes left here so I'm gonna try to race through some things.

Car break-ins where, you know, a parking lot, there'll be 20, 30 cars broken into.

And what a lot of law enforcement have said, I think you have said, a lot of it is people searching for guns.

What is your office, and your part of the puzzle, able to do to try to reduce all those car break-ins?

- Yeah, so one of the things that, you know, we're not the law enforcement agency, right, but one of the things that we have done is in our juvenile court prosecution unit, we have set up something called the cars unit and it focuses on youths who are doing nonviolent auto thefts and auto break-ins.

And the idea is to intervene then before they graduate to the carjacking and the aggravated robberies and the more violent stuff.

And so it's intensive working with them very early on.

The idea is, you know, ankle bracelet and must stay in school and you must go to Memphis Allies, you know, Youth Villages run program and, you know, constant monitoring, you check on them every month.

And, you know, if they can stay outta trouble and they can graduate from the Youth Villages program, then we will consider dropping the charges.

And it's only been in effect for a couple of months, but so far the results have been very promising.

- Does blended sentencing come into case here or no?

Is that?

- Well if someone has a long history of like say, you know, carjacking or aggravated robberies, that might be a good candidate for blended sentencing.

And now that the law been passed, we're definitely gonna do that.

- Another one, drag racing went from a Class A to Class E. Did I say that right?

- Yeah.

- So from a one year sentence to one to six years?

First, does drag racing include reckless driving or is it literal drag racing?

- It's just drag racing.

- Just drag racing.

- Which is hard to prove, right?

But where we can prove it, then we have a bigger tool in our belt.

We can, you know, talk about felony.

- Does that include car seizures?

That's a big one that people talk about is the ability to seize a car that's been used in drag racing.

- Yeah, so, you know, you can do a seizure after a conviction, but you can't do it- My understanding is we haven't had a chance to change the law yet to allow seizure at the initial stage where you first make the arrest.

- Let me do this, and apologies to Aarron, but you mentioned swift and severe, you know, justice when, your office, you were not in office when Phil Trenary was killed back in 2018.

Recently, the second defendant pled guilty, will go to jail for 20, 30, 35 years.

I've talked to no one in my world who feels like that went well, that five to six-- - Took too long.

- What, as you look back at it, and again, I'm not putting it all on you, but what went wrong?

Why would that take so long?

And then it just seems like justice, it wasn't swift.

- You're right.

- And it was such a mess.

- You're right.

So, you know, like you said, most of the years of delay occurred before my watch, right?

- Fair enough.

- I think the ultimate results were good.

We got good results in those cases, but it did take too long.

A lot of it had to do with the defendant changed attorneys several times and then you have to give the, you know, the new attorneys time to result.

And there were, you know, legal arguments that were were made.

But it definitely did take too long.

You know, one of the things that we're doing in our office is we're working on the backlog.

We have a 60-day list and the state is always ready policy where we are trying to move the violent cases along much quicker.

- All right, I'll cut you off there, but thank you very much.

Thank you Aarron.

Thank you for joining us.

If you've missed any of the show today, you can get the full episode at wkno.org or download it as a podcast wherever we get your podcasts.

Thanks very much and we'll see you next week.

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