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Joint letter re TN Taskforce on Sentencing and Recidivism July 2015

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July 30, 2015
Governor Bill Haslam
1st Floor, State Capitol
Nashville, TN 37243
Derrick Schofield, Commissioner
Tenn. Dept. of Correction
320 6th Avenue North
Rachel Jackson Building
Nashville, TN 37243-0465
Bill Gibbons, Commissioner
Tenn. Dept. of Safety & Homeland Security
P.O. Box 945
Nashville, TN 37202
Re: Governor’s Task Force on Sentencing and Recidivism
Dear Governor Haslam and Commissioners Schofield and Gibbons:
On behalf of the Tennessee Consultation on Criminal Justice, the No Exceptions Prison
Collective, the Human Rights Defense Center, the TN NAACP, Davidson County Public
Defender Dawn Deaner, NOAH Criminal Justice Task Force, and Knox County Public Defender
Mark Stephens, we are writing to express our comments and concerns regarding the draft
recommendations of the Task Force on Sentencing and Recidivism.
Our understanding is that the mission of the Task Force is to “improve public safety in
Tennessee by identifying (1) strategies to reduce recidivism among individuals leaving prisons
and jails and (2) changes to sentencing laws and practices that will more effectively use criminal
justice resources to reduce crime and address the growth of the prison and jail population.” A
copy of the draft recommendations intended to implement these goals, distributed at the Task
Force’s last meeting in June, is attached for reference.
Initially, we recognize the draft recommendations have not yet been finalized and lack detail and
context. Based upon the draft text, though, we commend the Task Force for making forwardlooking recommendations that we believe would improve Tennessee’s criminal justice system,
specifically recommendation nos. 6, 7, 8, 9, 11, 12, 13, 14, 15 and 16.
However, based upon the draft recommendations and more detailed information contained in a
June 6, 2015 report by the Vera Institute of Justice, we have serious concerns regarding several
of the Task Force’s other recommendations that we feel need to be addressed at this point in the
process. Specifically, we have reservations regarding six of the draft recommendations. We also

are concerned about two issues the Task Force appears not to have addressed, and with the
process by which the Task Force arrived at its draft recommendations.
1. Draft Recommendation #1
Our most pressing and serious concern involves the first draft recommendation: “Institute truth
in sentencing for felony convictions through the establishment of clear mandatory minimum
sentences [alternative: clear presumptive sentences] that are conveyed to all interested parties at
the time of sentencing.”
It is our understanding that this recommendation involves keeping the existing classification of
felony offenses, a range of punishments associated with each offense, and the categorization of
offenders based on prior offenses. Offenders would be required to serve their sentences to their
presumptive release dates, which will include up to a 15% reduction for good time credits. The
presumptive release date could be extended for misbehavior, presumably to the maximum
amount of the sentence, but could not be reduced below the presumptive release date set by the
court at the time of sentencing. There would be no parole; rather, prisoners would be released at
their presumptive release dates and would be required to serve a specified amount of time on
community supervision, which also would be set at the time of sentencing.
This new practice, which would represent a significant change in Tennessee’s current sentencing
scheme, would be implemented “in order to achieve greater certainty and transparency at the
time of sentencing.” While we are not opposed to this goal, we are concerned about how it would
be implemented – details not included in the Task Force’s draft recommendations or the Vera
report. Our belief, based on research and the experience of other states, is that lengthy sentences
are both counterproductive and a waste of taxpayer money and other resources. Our view of the
Task Force’s recommendations depends on whether they would have the effect of imposing
longer sentences or preserve existing sentence lengths but change how they are imposed.
For example, a system that calculates the proposed presumptive release dates based on the
current release eligibility dates specified in Tennessee’s existing sentencing matrix – e.g., 20%
for mitigated offenders, 30% for standard offenders, etc. – could be a workable solution. As an
example, a standard (Range 1) sentence for a Class A felony is 15 to 25 years with a 30% release
eligibility date. If a prisoner is released after serving 30% of the sentence imposed from within
the 15 to 25 year sentencing range (the presumptive release date, less good time credits), and is
placed on a term of community supervision in lieu of release on parole, that could certainly be
a viable alternative to Tennessee’s current sentencing scheme.
Similarly, a workable solution could be to require prisoners to serve 85% of the total sentence
imposed, but to reduce the sentencing range within the existing sentencing matrix. For example,
for a standard Range 1 offender for a Class A felony, instead of a 15 to 25 year range, the range
could be changed to 4.5 to 7.5 years (to reflect the current 30% release eligibility date for Range
1 offenders). The full 4.5 to 7.5 year sentence would then become the presumptive release date,
less good time credits. This would result in the exact same amount of time served as in the first
example, but would set the presumptive release date at the current release eligibility date of, in
this example, 30% for a standard Range 1 offender, by changing the sentence range.


Our concern, however, is that the Task Force is instead contemplating a recommendation that the
sentencing range remain the same – 15 to 25 years for a standard Range 1 offender for a Class A
felony – and that the presumptive release date will be set at 85% of the sentence imposed within
that range (85% being associated with most truth-in-sentencing type sentences as well as being
consistent with the current truth-in-sentencing standard in Tennessee). That would lead to a
significant increase in the amount of time that prisoners serve and result in a major increase in
the state’s prison population over time, and thus incarceration costs.
Several considerations counsel against such an expansion of the 85% truth-in-sentencing model
that currently exists on a limited basis in Tennessee for specified violent felonies:
● First, the increase in prison population will result in a substantial increase in cost and an
even greater expanded Tennessee Dept. of Correction (TDOC) budget. During the past
four years alone the TDOC’s budget has increased from $687.7 million in FY 2010-11
to $948.5 million in FY 2013-14 – an increase of almost 40%.1 During the same time
period, the TDOC’s population increased less than 5%. When the 1995 85% truth-insentencing bill was passed, the fiscal note projected a total budget increase in the tenth
year of $57 million. Twenty years after its enactment, the truth-in-sentencing law has in
fact cost Tennessee taxpayers billions of dollars, evidencing a woefully negligent
underestimation at the time. If, as the Task Force may recommend, the 85% truth-insentencing model is to be expanded to all felony convictions while maintaining the
current ranges in the sentencing matrix, the increased cost would be astronomical.
● Second, current evidence-based studies find that increased sentences do not necessarily
lead to increased community safety unless one utilizes the practice of universal lifetime
incarceration, a practice which would be contrary to every acceptable civilized
democratic government known in the Western world. It seems particularly hazardous to
increase prison populations in a state where the turnover rate for correctional officers is
over 50% at some state prisons, a fact that has already led to destabilized and increasingly
dangerous environments for both prisoners and officers, as evidenced by recent news
● Third, this draft recommendation does not address the impact on families of men and
women in prison with respect to increased sentence lengths. The extremely high levels of
incarceration in this country have resulted in the destruction of families and destabilized
primarily minority communities. Numerous national organizations based upon years of
study report that children with an incarcerated parent face a significantly greater
likelihood of incarceration themselves. Even Sesame Street has recognized the problem
of children who have an incarcerated parent, by creating a muppet in that situation.
At a time when a majority of states are seeing the downside of truth-in-sentencing and the
overwhelming financial burden of mass incarceration, and are therefore implementing reforms
that will actually decrease prison populations, the Task Force proposals could have Tennessee
move in the opposite direction. The federal prison population under a mandatory minimum
sentence structure is instructive. Under the federal Sentencing Guidelines, prisoners are released
at their presumptive release dates based on their full sentences with the ability to earn around

The TN Board of Parole was incorporated into the TDOC during this time period.


13% in good time credits, followed by a term of community supervision – similar to the Task
Force’s apparent proposal. The federal Sentencing Guidelines became effective in 1987, when
the federal prison population was around 50,000. Today the federal prison population is about
207,845 – a more than 400% increase. There are many factors that have contributed to this
increase, of course, but the Sentencing Guidelines have played a significant role as they have a
direct impact on the amount of time that prisoners serve, which in turn has a direct impact on
prison population levels over time, as well as incarceration costs.
One other issue relevant to the first draft recommendation that does not appear to be addressed
by the Task Force is the manner of framing sentences, in particular framing them in months
instead of years. According to a presentation during the Governor’s 2014 Public Safety Summit,
imposing nine-month sentences rather than one-year sentences could result in a savings of $6
million per year; imposing 30-month sentences instead of three-year sentences could result in
savings of over $147 million per year. A month-based system provides more flexibility.
2. Draft Recommendations #2, 3 & 4
We also have concerns about draft recommendation nos. 2, 3 and 4, which would enhance
sentences for repeat drug trafficking, aggravated burglary and domestic violence offenders.
While some three-time offenders may require prolonged incarceration, others might require only
a typical sentence combined with some other type of intervention designed to reduce recidivism.
There is a current national trend to reduce sentences, not increase them, especially in states, like
Tennessee, where crime rates are decreasing. Longer sentences do not always result in increased
public safety because there is a point of diminishing returns; however, they do tend to result in
increased prison populations and incarceration costs, along with the destabilization of families
and communities. Moreover, once sentences are increased it is often politically impossible to
decrease them, thus any sentence increases will have an ongoing impact on the state’s prison
population and related correctional costs in the future.
Even without these sentencing changes for repeat drug trafficking, aggravated burglary and
domestic violence offenses, there is 9% prison population growth projected in Tennessee over a
5-year period ending in April 2019. Also, the concept of a “repeat offender” must be clearly
defined to mean that the new offense occurs after a conviction and not just repeated arrests, or
crimes that are part of one series of offenses. To do otherwise would encourage the police to
delay an arrest for the purpose of “racking up” more offenses to achieve a higher sentence, for
example. That practice actually occurred under the prior Class X drug law, which was later
repealed due to such abuses. See State v. Hinsley, 627 S.W.2d 351 (Tenn. 1982).
3. Draft Recommendation #5
The Task Force also appears to be considering intermediate sanctions for technical parole or
probation violations, such as short periods of detention, but only for non-serious offenses. Even
serious offenses may warrant only intermediate sanctions instead of a return to prison. The Task
Force’s suggested option of community supervision for all offenders after they are released from
prison, instead of parole, could result in more returns to prison based on technical violations,
unless there is a significant change in the goals and strategies of post-release supervision. There

is already a high rate of parole violators returned to custody; according to the Bureau of Justice
Statistics, over 38% of the TDOC’s total admissions in 2012 were parole violators.
4. Draft Recommendation #10
The Task Force’s draft recommendation no. 10 suggests supporting “a Social Impact Bond
model of investment as a way for funding promising re-entry programs.” While social impact
bonds (SIB) have become trendy in some criminal justice circles, they do not have a proven track
record of success. In fact, earlier this month, news reports indicated that the nation’s first major
social impact bond initiative, meant to reduce recidivism among youthful offenders held at the
Rikers Island jail complex in New York City, “had failed to produce the desired financial and
philanthropic returns. As a result, the five year investment was scrapped after three years.” The
investor in the program, Goldman Sachs, suffered a $1.2 million loss.
5. Other Issues that Should be Addressed
Many of the considerations we have highlighted to this point could be taken into account by a
Sentencing Commission or Council. Although the draft recommendations mention the possibility
of creating such a Council, we have been told this recommendation is not currently a priority.
We feel that establishing a sentencing commission independent of the TDOC for the purpose of
making recommendations to the legislature about sentencing policies and related issues is
crucial. A number of other states have such commissions and have seen decreases in both
recidivism and incarceration costs.
A second issue that has not been addressed by the Task Force is whether to reinstate the joint
Select Oversight Committee on Corrections. We believe the Committee should be reinstated in
order to provide direct and ongoing legislative oversight over the Tennessee Department of
Corrections. The Committee operated until 2011, and to the extent that the recommendations
of the Task Force will lead to legislation that will impact the TDOC and Board of Parole, the
legislature should have independent oversight to monitor those agencies’ implementation of that
legislation going forward, through a Committee dedicated to that purpose. Among other issues, a
reinstated Select Oversight Committee on Corrections would review and monitor the TDOC and
Board of Parole’s progress relative to community supervision, reentry initiatives and recidivism
reduction. The TDOC is, according to Commissioner Schofield, a “billion dollar a year
business.” It is irresponsible government and irresponsible public policy to have any government
agency operate a billion-dollar-a-year budget, with complete control over almost 30,000 citizens,
and yet have no independent legislative oversight committee. Continuous news reports of a
Department of Correction fraught with problems, including violence and staffing issues, stand
as evidence of the immediate need to reinstate the Committee.
6. The Task Force Process
We are also concerned about the composition of the Task Force. According to a news release
issued when the Task Force was initially convened, the Task Force members include three
district attorneys, a former district attorney, two sheriffs, a former sheriff, a chief of police and
the Commissioners of two state law enforcement agencies – the Department of Safety and
Homeland Security and the TBI – as well as the Commissioner of the TDOC and the chairman of

the Tennessee Board of Parole. Thus, the Task Force is weighted toward the law enforcement
community. The Task Force includes only one public defender, and while one victims’ rights
advocate is on the Task Force, there is no advocate for prisoners or family members of prisoners.
Other members of the Task Force include six state lawmakers, most of whom do not have any
specific expertise with respect to sentencing or recidivism. Our concern is that the Governor’s
selections for the Task Force have created a bias toward law enforcement and, thus, typical law
enforcement solutions with respect to our criminal justice system: Longer sentences, more
prosecutions and more prisons – a position which is untenable and has led to a national crisis of
mass incarceration that must end, as has been recognized by both political parties, the President,
Supreme Court Justices and even the Koch brothers.
Further, a member of the Tennessee Consultation on Criminal Justice has been attending the
Task Force meetings and reports there has been a dearth of public input, with Task Force
members having little interest in soliciting testimony from the many state citizens who have
expertise in the areas of sentencing and recidivism reduction – including criminal defense
attorneys, academics, those involved in community-based reentry programs, etc. The lack of
public involvement, including the inability of members of the public to address the Task Force
at its meetings, necessary limits the information and data the Task Force has to work with in
terms of formulating final recommendations to the Governor’s Public Safety Subcabinet.
In conclusion, we hope the Task Force will seriously consider these concerns and incorporate
them into its final recommendations, or allow us to express them in more detail.
TN Consultation on Criminal Justice
David Phillipy
By: David Phillipy

Chris Slobogin
Christopher Slobogin (Vanderbilt Law)

No Exceptions Prison Collective
Jeannie Alexander
By: Jeannie Alexander
Human Rights Defense Center
Alex Friedmann
By: Alex Friedmann


Tennessee NAACP
Sheryl Allen
By: Sheryl Allen
Dawn Deaner
Davidson County Public Defender Dawn Deaner
NOAH Criminal Justice Task Force
Walter Searcy
By: Walter Searcy
Mark Stephens
Knox County Public Defender Mark Stephens
cc: Task Force members