Ahead of the Democratic primary in May, to begin our coverage of the race for Nashville district attorney, the Nashville Scene sat down with all three candidates — current District Attorney Glenn Funk, Sara Beth Myers and P. Danielle Nellis. We asked about a number of topics the DA will face in the coming term. Their answers here have been lightly edited for context or space.
The Death Penalty
Tennessee still allows capital punishment and has ramped up the pace of executions in recent years. Funk has not sought the death penalty during his term in office, even in the case of Travis Reinking and the 2018 Waffle House murders. It’s a sharp departure from his predecessor Torry Johnson. We asked: Will your office, as a matter of policy, seek the death penalty in a murder case?
Funk: “I have always said that I am personally opposed to the death penalty. We have analyzed the enhancing factors on several cases and never felt like the enhancing factors outweighed the sanctity of human life.”
Myers: “I would not seek the death penalty as district attorney.”
Nellis: “No.”
Bail Reform
A number of cities and counties around the country have begun to examine the effects of bail on pretrial incarceration rates and, in particular, the implications in terms of racial equity. We asked: How do you view the bail reform movement and how would you approach it as DA?
Funk: “So I started working on bail reform eight years ago, when I first took office. I said very clearly that my office would no longer use the fact that someone was incarcerated pretrial as an attempt to coerce a guilty plea. And what the group of stakeholders worked together to achieve was a system by which almost all misdemeanors get pretrial release, a nonmonetary release at the time that they were arrested. There are a handful of exceptions — domestic violence, DUI third offense. Or if you’ve been arrested twice in the last week. Other than that, you get out of jail, on a misdemeanor.
“That’s also been expanded to D and E felonies — theft over $1,000, reckless endangerment where nobody is hurt. It’s a D and E felony, where a person is not the victim. Right? If you were to shoplift from the store, over $1,000, you would get pretrial release. But if you saw my lawn mower parked in my front yard, jumped on it and took off with my lawn mower — well, you know what, you’re gonna be held, at least until a judge can review your bond the next day, and they might give you a pretrial release. So it’s not kind of a revolving door where you’re in and you’re out in less than two hours. But it still leaves bail in place for the violent felonies, aggravated robbery, murder [and] rape.”
Myers: “We’ve never had cash bail reform before. There hasn’t even been a tip of the hat in that direction before. And it’s crucial as a part of criminal justice reform. We have to make sure that people are being treated as equitably as possible in this complex system. And simply because there’s a disparity in wealth should not mean that there’s a disparity in treatment in the criminal justice system.
“So we need to make sure that people who are charged with the same offenses — one who can afford to get out pretrial and one who can’t — are able to have access to the same freedom pretrial, regardless of whether or not they can pay, but that also affects public safety.”
Nellis: “The purpose of bail is to ensure somebody appears in court, right? So if there’s an alternate way to do it, that does not negatively impact those who are unable to afford it, that’s what we need to do. Our law allows for it. Indeed, our law actually requires judges first to consider release on recognizance, and then community-based supervision, and then bail. We normally jump straight to setting the bail, in part because that middle section hasn’t been developed.
“And so in order to replace our cash bail system, we really need to look at expanding the options for community-based supervision. Right now we have an instrument to determine whether somebody is eligible for a pretrial [release] with the sheriff’s office. The decisions, there are policy-based decisions: Who is eligible? Who is not eligible? It’s not a law-based decision.
“We need to have a more robust assessment tool in place for when people are arrested to address [and] identify any root-cause issue that has brought them in contact with the criminal justice system. When we identify that root-cause issue, we should connect them with community-based services in conjunction with community-based supervision so that we’re meeting that underlying need. And in doing so we reduce the number of defendants and victims overall.”
Marijuana
Funk made a splash — and angered some members of the state legislature — when he announced that his office would no longer prosecute possession of a half-ounce or less of marijuana. We asked: How do you view not prosecuting simple possession of marijuana in Nashville?
Funk: “We have seen the incarceration rate go over the last eight years from 5,000 inmate days in jail just for marijuana down to like six. We save the court system docketing cases and subpoenaing witnesses, we save jail incarceration costs. More importantly, the folks that would have been charged and potentially convicted and incarcerated for marijuana don’t have the collateral consequences of an arrest. It doesn’t show up on their record, it doesn’t preclude them from obtaining jobs or keeping jobs or getting promotions or housing.”
Myers: “That is a national trend. That is not something that’s special to Nashville. That is something that not even law enforcement is interested in prosecuting, when we have much bigger fish to fry. In terms of violent crime, we need to be focusing on violent crime.”
Nellis: “So I think our current DA rode the wave of legislation that was already in place before he took office. I think what [Funk] did is in line with what has been found to be a best practice. Now, do I agree with the way he did it? Absolutely not. Because when you announce things like that you draw the wrath of our legislature, and they become very active in eliminating the discretion of the DA, and we have to have discretion as prosecutors to make those decisions. More specifically, I don’t think we should be prosecuting low-level drug usage. I do think that we need to make sure our resources are used to clear backlogs of 100-plus cases of homicides. The allocation of resources simply doesn’t make sense, coupled with the known and studied disparate impact on Black, brown and other communities. And if we’re going to fight systemic injustice, we have to recognize it.”
Violent Crime
Depending on which statistics you look at — or which cable news outlet you’re watching — the violent crime rate is either up a little or up a lot. We asked: How do you view the violent crime rate and what can be done about it?
Funk: “Firearm possession in Nashville and across the country continues to rise. Five years ago, our legislature passed a law that said that an automobile is an extension of a person’s house. Last year the legislature passed a law that’s titled ‘constitutional carry.’ It said even if you don’t have any training, even if you don’t have a certificate to carry, that you can carry a gun with you, anywhere in public.
“So shootings are up. Homicide rates have returned to the numbers that we saw in the 1990s or early 2000s. Overall, violent crime has been steady in Nashville for eight years — we had had 5,000 to 6,000 felonies occur that needed to be indicted. And so overall, serious crime has remained fairly steady. But shootings are up.
“So what do we do about it, right? Well, number one, our murder conviction rate as an office is over 95 percent. But one of the problems that I saw was that in the early 2000s [MNPD Chief Ronal] Serpas decentralized our murder squad and sent them out to the precincts.
“[After MNPD Chief John Drake’s appointment] I said, ‘Well, I have one request for you right off the top, and that is to recentralize the homicides.’ And his response was, ‘You know, that actually would make a lot of sense to me. But let me ask you: How will you support that?’ And I said, ‘I will dedicate a deputy district attorney to be the liaison to the homicides. And I will have every team leader work as kind of an advisory group to where we can meet regularly with the homicide group that you put together to brainstorm ideas of how to potentially solve [the problem].’ It’s important to have a dedicated group that’s working nothing but homicides.”
Myers: “So one of the key pillars of my campaign is crime prevention. The DA should absolutely be involved in reducing those numbers, and can be, but historically it has been a reactive office. I want it to be a proactive office. And that’s why I want to break the office up into precincts and assign assistant DAs to precincts so that they get to know the communities that they’re serving, the specific neighborhoods that they’re serving. And so that we can look at the crime data for that precinct. We know what’s going on, but we need to know why it’s happening.
“That’s where the conversations with people at the community level are going to come into play. The ADA will have quarterly listening sessions in those neighborhoods in the precincts and make sure that we’re listening to business owners, to churches, to nonprofits, to after-school programs, and make sure that we’re tailoring for those particular neighborhoods, resources on the front end to prevent crime, from ever escalating to the criminal justice system level. We need to start with prevention. It’s just never been done before. There’s no reason why we can’t do it.
“We just have to be outward-facing. It doesn’t even require more resources or an increase in the budget of the office. It’s simply a restructuring and making the DA’s office community-facing in a way that — just because it’s never been done, people don’t know who their prosecutors are. So when there’s an emergency, they’ll meet their prosecutor for the first time. And that’s unacceptable. You need to have a relationship beforehand, so that you can stop the problem before it escalates. And that type of solution is being tried in various ways in other cities across our country. And there’s no reason why we shouldn’t be tailoring a solution like that here in Nashville.”
Nellis: “We know that most criminal behavior is trauma response. So how are we addressing whatever the underlying trauma is, including poverty, which has been studied and determined to be a traumatic experience? How are we addressing that as a community and the way you do that? Because the DA, every case that comes in contact with the criminal justice system goes to the DA’s office. The DA has to welcome all community stakeholders to the table to identify and align resources. So those people who are coming in contact with the criminal justice system, they’re also coming in contact with community-based resources, community-based organizations to meet that need that has brought them in contact with the criminal justice system. And that’s for defendants, but that’s also for victims, right? There’s a need to heal for victims, whose cases are coming through the criminal justice system.”
The Andrew Delke Case
One of the highest-profile prosecutions of Funk’s term was the prosecution of police officer Andrew Delke for the shooting of Daniel Hambrick. Funk was criticized for reaching a plea agreement the week before the trial was to begin. We asked: In retrospect, should the Delke case have been taken to trial?
Funk: “I stand by that decision, and I made the right decision for that case, and I made the right decision for Nashville in that case. The victim, Daniel Hambrick, had a handgun in his hand at the time that the officer told him to drop the gun and stop or he would shoot. I do not believe that the officer had a right, when the man was just running away from him, to shoot him in the back. And I believe that that was a first-degree murder — I think was premeditated. I think it was intentional. I think he obviously killed him. If the case had gone to trial, other factors would have come out during the trial, such as Mr. Hambrick’s record — which the officer did not know about at the time that he was chasing. But under Tennessee law, the jury would have known about some of his Facebook postings.
“Is there a chance that the officer would have been convicted of first-degree murder? Yes, that was not a 0 percent chance. Is there a chance the officer would have been acquitted? Most of the time in the United States the officer is not even charged. If this had been an acquittal, then would you really have wanted your day in court if the officer got no accountability, and an overwhelming chance that it would have been a hung jury? If it’s a hung jury, there’s no conviction and there’s no accountability. Andrew Delke admitted he was guilty. Andrew Delke is now a convicted felon. Andrew Delke is in jail tonight.
“I understand why some people think, ‘Well, you should have at least put on a trial.’ I’ll take a conviction with an admission of guilt and incarceration over a very high probability of a hung jury and a possibility of acquittal.”
Myers: “I will tell you from a procedural standpoint, that it was completely mishandled from the very beginning to the very end. And that was stepping outside of the procedure, really, for the purpose of making headlines. That was a very frustrating thing for me to watch, in that how it was portrayed, how it was handled, even in terms of getting the indictment was outside of the regular procedure for how an indictment is usually obtained.
“And the DA herself or himself would not be one to pursue that unless you’re doing it for headlines. So from the very beginning, that case was chosen by that DA’s office to be highlighted in a way that is detrimental, for everyone involved in that case. Cases should be handled the same way, procedurally, for everyone, regardless of who they are, or what’s going on in the country, or what’s going on in Nashville. But when they’re not, when people deviate from that procedure to make headlines, that is dangerous for the community.
“So it was mishandled all the way from indictment to the grand finale that we all witnessed so publicly in our national media, for the lack of victim communication. And victims have rights — victims have statutory rights to be informed about what’s going on in the system. There was not communication. And I know that for a fact from numerous sources, the members of the victim’s family were not aware of that plea deal until after it had already been made. That is simply unacceptable.”
Nellis: “So you know that on Thursday [before the trial], [Daniel Hambrick’s mother] Vickie Hambrick got a phone call. And then moments later, the media was aware that that was a plea. Really our Constitution requires that victims at least be informed if not involved at every critical juncture of a case. My understanding is that they started calling the court on Tuesday or Wednesday to get approval. That’s contrary to what our Constitution requires, if you’ve already made a plea deal, and you didn’t involve a family and to then expect her to show up on Friday morning? When she lost her only child and had been promised a trial all along? They had pulled a special jury to sit on Monday. And we’re litigators, right? We’re trial attorneys. There’s no reason not to have that trial, except for political reasons.”
