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Tennessee Adopts Alternative Sentencing for Primary Caregivers of Minor Children

by Ed Lyon 

Study after study has shown that children of incarcerated parents often suffer, sometimes catastrophically. Children with an incarcerated parent have higher incarceration rates as adults themselves than children who never had a parent behind bars.

Some states are taking action to try to circumvent that vicious circle. For example, courts in Massachusetts, Oregon and Washington have been given the ability to sentence defendants to community-based alternative punishments other than incarceration, provided the conviction was for a non-violent offense and the defendant is the primary caregiver of a minor child. 

Tennessee has become the latest state to implement this humane, progressive practice through HB1449 / SB985, legislation titled the Primary Caregiver Bill (PCB). The bill passed with strong bi-partisan support and was signed into law by Governor Bill Lee on May 8, 2019. It went into effect on July 1.

The PCB specifically excludes alternative sentencing for any felony that, during the offense’s commission, involved “the use, attempted use or threatened use of physical force or a deadly weapon against another.” It includes a list of statutorily excluded offenses and also excludes “conduct that presents a serious risk of physical injury to another.” 

On a more positive note, the law uses the mandatory language “shall,” requiring sentencing courts to determine a defendant’s eligibility for alternative sentencing options when they are the primary caregiver of a minor child. Those options include: “(l) Drug and alcohol treatment; (2) Domestic violence education and prevention; (3) Physical and sexual abuse counseling; (4) Anger management; (5) Vocational and education services; (6) Job training and placement; (7) Affordable and safe housing assistance; (8) Financial literacy; (9) Parenting classes; (10) Family and individual counseling; and (11) Family case management services.” 

The remainder of the PCB is just as positive, granting a sentencing court wide discretion to modify a defendant’s sentence as it is served, including decreasing it and, if needed, sanctioning defendants within specified limits. 

Former Tennessee prisoner Jawharrah Bahar said she was grateful for the PCB’s enactment. Having served 3½ years in prison, she has spent the last five years trying to rebuild the bond with her children. Her 10-year-old daughter was so traumatized by her incarceration that she follows Bahar around the house constantly, even to the bathroom. Whenever she has to leave, her daughter asks, “When are you coming back? How long are you going to be gone?” 

Bahar, an organizer with Free Hearts, a non-profit that advocates for families impacted by incarceration, said it is her hope that laws like the PCB will prevent some parents from going to prison, so their children don’t have to ask similar questions.

“We celebrate the passage of this bill and what it means for families while also knowing that Tennessee still has a lot of work to do for lasting change, including the need to divert funds spent to incarcerate large numbers of Tennesseans into community-based alternatives apart from the criminal legal system,” said Free Hearts executive director Dawn Harrington. “We will all benefit in the long run when we choose to invest in people and communities, not prisons.”

The Primary Caregiver Bill was sponsored by state Senator Brenda Gilmore and Rep. Karen D. Camper. 



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