When Tennessee’s Criminal Justice Investment Task Force released its report and policy recommendations in December, it offered a notably blunt assessment.
“Over the past 10 years, Tennessee’s incarceration rate has risen to 10 percent above the national average, and its communities are no safer for it,” reads the report’s opening paragraph. “Despite incarcerating more people and spending over $1 billion annually on corrections in the state budget, Tennessee has the fourth highest violent crime rate in the nation and a high recidivism rate, with nearly half of individuals rearrested within three years of their release from custody.”
Rep. Michael Curcio, a Dickson Republican who chairs the House Judiciary Committee and worked on the task force, put it more succinctly in a statement released with the report.
“Currently, we are spending too much to send too many people to prison for too long,” Curcio said.
Gov. Bill Lee
Even Tony Parker, the commissioner of the Tennessee Department of Correction, said, “It’s clear we cannot incarcerate our way out of the issues facing Tennessee’s criminal justice system.”
The report identifies the main drivers of that dynamic as steadily increasing sentences and steadily decreasing rates of release on parole. From 2009 to 2018, the average sentence served by prisoners convicted of all types of offenses — including nonviolent crimes — increased. The average time spent incarcerated grew the most for people serving drug sentences.
Among the report’s other striking findings is Tennessee’s rising female incarceration rate — female felony admissions have increased 12 percent over the past decade.
The task force was convened by Gov. Bill Lee in June 2019, just five months after he took office. During his 2018 campaign, Lee spoke often about his experience with the prison ministry organization Men of Valor and the way it compelled him to work on criminal justice reform — in particular, rehabilitation and re-entry. His frequent refrain: Ninety-five percent of the people in Tennessee’s prisons will be released back into communities throughout the state.
For progressives interested in trying to fix the state’s broken criminal justice system, Lee’s victory in the Republican gubernatorial primary provided some hope. His interest in the issue seemed far greater than that of his predecessor, Bill Haslam, and he was preferable to other GOP candidates from further to the right, like former U.S. Rep. Diane Black.
But as Lee enters his second year in office, the extent to which he will alter the state of crime and punishment in Tennessee remains an open question. His talk about redemption and rehabilitation rings hollow in light of the three executions he has signed off on. A fourth, the electrocution of Nick Sutton, is set for Feb. 20.
At the same time, Lee has already achieved some small but significant changes that have been praised across the political spectrum. His focus thus far has been on low-hanging fruit, albeit fruit that others before him declined to pick.
He has set far more ambitious goals, though. The task force’s report makes clear the size and scope of the problem. It also provides a rubric by which the governor can be judged.
In his State of the State address earlier this month, Lee uttered the words that startle those dedicated to ending the phenomenon known as mass incarceration.
“First and foremost, we must be tough on crime,” he said.
The phrase “tough on crime” is closely associated with the policies that led to the explosion of the prison population in the ’80s and ’90s. It has also often been used as a cudgel against politicians who have suggested that we might consider putting fewer people in prison and start letting more people out — proposals dismissed as “soft on crime.”
Lee seems to be attempting a balancing act, maintaining that Tennessee can be both “tough on crime” and “smart on crime.” In his comments accompanying the task force report, Curcio appeared to lay out a sort of mission statement for this approach.
“This undertaking has shown that we need to do a better job of separating those we are mad at from those we are afraid of in our criminal justice system,” Curcio wrote.
Despite the task force’s outline of how average prison sentences have grown over the past decade, and how that has contributed to a corresponding increase in Tennessee’s prison population, Lee’s legislative agenda this year will include bills creating harsher criminal penalties. In particular, he will push increased penalties for theft of a firearm and reckless endangerment of a police officer or first responder.
It will come as little surprise to longtime observers of the state legislature or criminal justice politics that a recent tragedy has inspired pro-carceral legislation named after the victim. House Majority Leader William Lamberth, who works closely with the Lee administration, is sponsoring the Spencer Bristol Act. The proposed legislation significantly increases criminal penalties for suspects whose attempts to evade arrest lead to the injury or death of an officer. Bristol was a Hendersonville officer who was hit by a car and died while chasing a suspect in December.
The primary thrust of Lee’s criminal justice agenda this year, though, will be efforts to improve the probation and parole systems. These structures ostensibly exist to be alternatives to incarceration or a way out of it, but they can paradoxically be the mechanisms that pull people into prison.
“Each year now in Tennessee we have a 50 percent recidivism rate,” Curcio tells the Scene. “So for every two people coming out of prison, you’ve got one of those people going back into prison. Inside that 50 percent statistic, 40 percent of those are for technical violations. So these are things that if you or I did them, they would not be a crime.”
The task force found that while the number of people snagged by such technical violations — noncriminal acts that nevertheless violate the terms of a person’s parole and can send them back to prison — has decreased in recent years, it is still a significant driver of the state’s recidivism rate. In 2018, according to the task force, the state saw more than 4,200 revocations from community supervision for a noncriminal violation.
“Folks are serving their time — they’re fulfilling what the judge sentenced them to,” Curcio says. “But then when they come out of prison, we’ve got an alligator in every single puddle that they pass.”
Curcio says he recently met with a man incarcerated at Turney Center Industrial Complex, a state-run prison in his district a little more than an hour west of Nashville. The man had come up for parole and been released — he got his life back and his wife back, Curcio says. But a technical violation sent him back to prison.
“Now he will serve a longer sentence than he would have served had he just waived parole and said, ‘No thanks, I’m gonna stay here,’ ” Curcio says.
He goes on: “If your opinion is, ‘Yes, these folks have broken the law, and we have to do everything we can to nail them against the wall,’ what I would argue to you is, we’ve done that. That’s what the prison time was for. But now if we continue to move the goalpost on them or yank the rug out from underneath them, we’re actually encouraging more criminogenic behavior.”
One fact highlighted by the task force looms over any discussion of how to improve conditions for prisoners who are released on parole: Relatively few prisoners ever get that far. In fiscal year 2019, according to the task force, the state Board of Parole conducted more than 14,000 hearings and granted parole in just 24 percent of those cases.
Observers hoping to see that number increase were concerned by Lee’s appointment of former Republican state Rep. Mae Beavers to the Board of Parole in December. Beavers was a strident social conservative in the legislature, as well as a reliable source of controversial legislation.
The governor’s full legislative agenda is not out yet. But Curcio says efforts to help formerly incarcerated Tennesseans re-enter their communities can be as simple as making it easier to get a state ID. Lee has said he wants to expand and improve community supervision with the hope of helping people who are out on parole avoid violations and readjust to life outside of prison. In his State of the State address, he also said he plans to “expand our recovery courts so that veterans and those struggling with addiction or mental health challenges will have access to specialized supervision.”
The task force report suggests that one important step could be reducing probation terms to focus resources on the time periods when people are most vulnerable.
“Research demonstrates that the initial days, weeks, and months an individual is on supervision are when an individual is most likely to reoffend or violate the terms of their community supervision,” the report reads. “Studies have found that supervision resources have the highest impact when they target this critical period of supervision. Yet, while the research shows revocations are most likely during the first few months of supervision, an individual in Tennessee can be on supervision for up to 10 years.”
Lee delivers his State of the State address
Speaking to a gaggle of reporters last week, Lee addressed the question of whether his proposals on criminal justice so far fulfill his rhetoric.
“Criminal justice reform will be an ongoing effort that won’t stop,” Lee said. “We passed some legislation last year. We will pass more legislation this year, and I don’t expect that we’ll stop, because there’s always need for improvement. We don’t ever get things solved in one step.”
Reform-minded lawyers and others who work in the trenches of the system every day are eager to see the governor take on bigger pieces of the problem. But they remain encouraged by the steps Lee has taken so far, and by what could come next.
Last year, Lee signed legislation eliminating the state fee for expunging diversion charges and convictions. Haslam had previously cut the fee in half.
“It wasn’t sexy or anything,” says Nashville attorney Daniel Horwitz, who has advocated for people attempting to navigate the expungement process. “It wasn’t the sort of thing that anyone does a statewide victory tour on. But it was really, really important for a lot of people who could not otherwise access expungement, because they couldn’t afford it.”
It’s also much easier, logistically and politically, than getting broader sentencing reform bills through the legislature.
Another move from Lee that has advocates like Horwitz cautiously optimistic is his decision to loosen the guidelines for pardons and commutations. In theory, the new requirements should make it easier for people in prison to qualify, meaning more people will be eligible to be granted early release or have an old conviction pardoned by the governor. The catch is, it’s still ultimately up to Lee. His predecessor did relatively little with this unfettered power; Haslam granted just nine commutations, 35 pardons and one exoneration during his eight years in office, with the majority coming during his final month in office. The most notable of those actions was his commutation in the case of Cyntoia Brown, who spent 15 years in prison for killing a man when she was 16 years old. The commutation followed years of local activism and a celebrity-led international campaign.
Governors rarely grant pardons and commutations before the end of their tenure, fearing political backlash for showing mercy to people who have been convicted of crimes. For that reason, the fact that Lee altered the guidelines so early in his first term caught the attention of close observers. But Lee has yet not granted clemency to a single prisoner — not to any of the men who have gone to the execution chamber on his watch, nor to anyone else.
“There is no right to clemency,” Horwitz says. “So even if you check every box, even if it’s very clear that you qualify under the governor’s criteria, the Board of Parole doesn’t have to recommend you for it, and the governor doesn’t have to grant it to you.”
If Tennessee ever stops sending too many people to prison for too long, it will be because of significant reforms to the state’s sentencing code. It hasn’t been overhauled since the late 1980s, and in the decades since it has been filled with various triggers and traps that create mandatory sentences or increase already-harsh ones.
Lee’s task force recommended that a working group give the code a comprehensive review “focusing on addressing the data trends related to increasing sentence lengths and time served in prison as well as establishing certainty in sentence lengths.” That work is getting underway with an eye toward proposing changes in next year’s legislative session. Some people involved in the process believe even that might be overly ambitious and that a piecemeal approach is more likely.
But that last line in the task force’s recommendation — “establishing certainty in sentence lengths” — is likely to be a point of contention. It hints at an approach favored by many of the state’s prosecutors known as “truth in sentencing.” In other jurisdictions, truth-in-sentencing policies have been associated with mandatory sentences and moves to shrink or even abolish the parole system.
Supporters of the approach argue that it is unfair for victims to see an offender sentenced to a vaguely defined sentence that can change depending on various factors while the person is in prison. A prosecutor, they say, should be able to sit down with a victim and tell them that if their assailant is convicted he will serve, say, 10 years and not a day less.
But that sort of approach would appear to be at cross purposes with efforts to shrink the prison population and release the rehabilitated back into their communities. Among the concerns raised by people who are skeptical of moves toward truth in sentencing is that it could eliminate incentives for good behavior, education and other steps that can currently lead to early release.
In the meantime, individual legislators are looking to chip away at harmful pieces of the sentencing code. Curcio is sponsoring a bill that would eliminate a mandatory minimum associated with “drug-free school zones.” Currently, a person arrested for a drug crime within 1,000 feet of a school, day care, public library or park in Tennessee faces a sentence that can put nonviolent first-time offenders in prison for longer than someone convicted of rape. In dense cities, these zones can cover most of a county. And the law gives judges no discretion when it comes to sentencing.
Curcio’s bill would reduce the zone to 500 feet and eliminate the mandatory sentence, allowing judges to evaluate specific circumstances.
“It’s already a crime to sell drugs,” he says. “It’s already a crime to sell drugs to children. It’s already a crime to have drugs on a school campus. All of these things are already crimes.”
Curcio says money spent on those cases — and those long prison sentences — is better allocated toward prosecutors and public defenders, judges and law enforcement. He says having more resources in those areas would help the state “adjudicate justice much more quickly.”
The Tennessee District Attorneys General Conference worked to see a similar bill defeated in 2018. (Curcio has also been on the other side of these debates; last year he led the successful effort by state Republicans to limit the power of Nashville’s new Community Oversight Board.)
Memphis Sen. Ramesh Akbari, who chairs the Senate Democratic caucus, tells the Scene that when it comes to criminal justice reform, “even having the discussion is a big step” in Tennessee. She is sponsoring bills to decriminalize marijuana and restore formerly incarcerated people’s voting rights.
Her big project, she says, is also related to sentencing. The law made infamous by the Cyntoia Brown case requires that minors convicted of first-degree murder serve 51 years before they are eligible for parole. Akbari wants to see that reduced to 30 or 25 years. (Ideally, she says, she’d reduce it further than that, but she knows even a modest reduction could be a political long shot.)
The legislature, though, remains full of people who believe in harsh punishment. Most legislative sessions include a variety of bills aimed at increasing prison sentences, not reducing them. There is an appetite among some legislators this year, sources say, to expand the list of crimes that are eligible for the death penalty.
As ever, lawmakers are burping up redundant or problematic bills alongside the reform-minded legislation. One Republican bill that would have criminalized wearing a hood or mask on public property was introduced but withdrawn after scrutiny. Another, sponsored by two Memphis Democrats, is aimed at people who steal packages off of front porches — that one has prompted some observers to note that stealing another person’s property is already a crime. Still another bill, sponsored by disgraced former House Speaker Glen Casada, would create a public online registry of people convicted of more than two DUIs.
If the governor is going to turn Tennessee away from mass incarceration and remake the state’s criminal justice system, he’ll have to contend with the ideologies and impulses that got us here. It’s too soon to say if that’s what he really wants to do.
