Not that long ago, state legislators used to pass what they knew was inappropriate legislation, usually to benefit some narrow constituency or business interest. To get around the issue of passing special laws for a very small group of people, they’d write into the bill that it would expire 30 days after passage. That way, the intended constituent got the special break, but the legislation was never codified.
Such now-you-see-it-now-you-don’t tricks haven’t disappeared altogether, although lawmakers appear to be slowly moving away from that sort of obvious constituent kowtowing. These days, such singular laws tend to be introduced in a more aboveboard manner, with proponents arguing the case for special treatment: Targeted tax-break bills, for example, have been nicknamed the “Nissan tax break” or the “FedEx tax break.”
Having taken a breather from the marathon legislative session that just ended, Hill watchers recently excavated one of those targeted bills that some say is unfairly specific. The legislationnow public chapter 664allows, among other things, for convicted felons who were pardoned by the governor during 1998 to have their records expunged.
But as it turns out, there was only one gubernatorial pardon in 1998, for a man named David Wayne Sneed, who pleaded guilty several years before to aggravated assault. Sneed’s legislator, Republican Rep. Keith Westmoreland, from Kingsport, worked on the governor to pardon Sneed for the youthful indiscretions. He even got the district attorney who prosecuted the case to write a letter in favor of the pardon, something the district attorney said he had done only once in 30 years of prosecution.
But it didn’t end there. After Sneed attended pilot school and had difficulty being hired by a major airlinewhat with a felony on his recordWestmoreland bailed him out with legislation. But instead of sponsoring a bill this past legislative session that would help all similarly afflicted young offenders, Westmoreland proposed an amendment to a broader bill dealing with the expungement of criminal records. The broader bill reduced the cost of expunging records for people against whom charges were dropped or otherwise dismissed. But the Westmoreland amendment, which includes the language about 1998 pardons and deals with something altogether different, means only one convict gets a break under his section of the bill.
Why propose an amendment for just one guy? “Because he’s the one I know,” Westmoreland says unapologetically. “Each of them is an individual, and, you know, each case is different. You can’t lump everybody into the same category. That’s the reason you have judges and juries and ranges and penalties and everything else.”
Westmoreland may defend his legislative efforts to help a single individualwhich he says he disclosed to his colleagues when the broader bill was debatedbut critics say such laws set a bad precedent, even if the beneficiary is deserving of the break. “Lawmakers would view it as compassionate concern for their constituents, but it’s bad public policy,” one legislative attorney says.
Rep. Kim McMillan, a Democrat from Clarksville who sponsored the bill Westmoreland’s amendment rode on, says the legislator told his colleagues the amendment was special-interest legislation. “He did announce that from the floor, and he did announce that to the members,” McMillan says, adding that she wouldn’t have “allowed it to happen if it was going to negate” her bill. Because the amendment didn’t interfere with her portion of the bill, she didn’t object.
David Raybin, a Nashville criminal defense attorney, says that other convicts and other families could use similar breaks and that a more fair-minded legislator might have taken the time to draft a more universal amendment.
“While I agree that each case is different, it’s critical that we always remember that it’s the law that must be the same for everybody. Perhaps it’s important that this one kid get a second chance so that the stain of a felony conviction does not follow him forever, but I’m appalled that this legislator fails to appreciate how horribly unfair this is to other equally-situated young folks whose families do not have the money and power to get the entire Tennessee Legislature to pass a special statute just to suit them.”
Westmoreland says he thought about how to make the bill more generic, but then he “got to thinking about [former Gov.] Ray Blanton.” Broadening the bill would have its dangers, he says, because “if you get a governor like Ray Blanton who’s going to pardon everybody, then you run the risk of expunging records on people whose records shouldn’t be expunged.”
In the end, though, Westmoreland says he would do it again. “I mean, this is a specific case that is unique, and it’s something that needs to be done,” he says. “Every once in a while, we in the Legislature get to do something that’s good, instead of dealing with things that are bad.”
But Raybin argues that what Westmoreland did wasn’t good at all. “This sends the worst possible message to our young people whose respect for the law we are trying to encourage. This legislator needs to reread the four words that appear over the doors to the Supreme Court: ‘Equal Justice Under Law.’ ”
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