This year’s crop of Tennessee statutes makes it more important than ever to research the potentially applicable sentencing provisions in every case. That research has gotten more complicated over the years.

In Tennessee, we still ostensibly use the sentencing code that went into effect in 1989. The Tennessee Sentencing Reform Act of 1989 was the product of years of study and work by the Tennessee Sentencing Commission to revise and modernize criminal sentencing. Sentences for criminal conduct were supposed to be predictable and easily ascertained.

Felony offenses had been divided into five categories (A-E felonies) according to the relative severity of the criminal conduct. The commission noted that one of the purposes of the grading was to prevent sentencing disparity.¹ Then, once the category of offense was determined, the sentencing range would be easy to figure out based on the prior criminal conduct of the individual defendant. The Reform Act had five ranges based solely on the number and type of criminal convictions of the defendant. You just needed to know the class and the range. As the sentencing commission noted with this approach, the potential sentence for each offender could be “rapidly ascertained.”² There was even a quick chart that would show the available sentences in a given case.

The only exception noted in the table was for first-degree murder, which had its own sentencing provisions. Now, however, exceptions have swallowed the rules. (Even with the versions of this chart that still appear in print publications, the only exception noted is for first-degree murder.)

When I first started practicing, a meticulous mentor had this grid under the glass on his desk, and we looked at it all the time. I remember that he had handwritten in some exceptions to the rules on the chart. Almost 10 years ago, though, I wrote about the dangers of relying on this chart at all anymore.³ There have been so many amendments to the sentencing statutes that it would be malpractice to rely just on the class of offense and range of offender to try to predict a sentence. Now, there are so many exceptions that if you still have the paper copy of the code, please tear out the page containing the grid and throw it away.

The problem with the grid is that since 1989, specific sentencing provisions have been added throughout the code—and not just in the sections on sentencing ranges. When researching potential sentences in order to advise clients, counsel must look at a minimum, at the statutory definition of the offense (usually in Title 39), any provisions regarding release eligibility for that offense (usually in Title 40), drug-free zones, provisions regarding sentencing credits, various registries, the possibility of lifetime community supervision, exclusions from probation or diversion eligibility and the potential for immigration consequences.

This year’s statutes make it more important than ever not to rely on the class offense and range of offender to predict a sentence.

Mandatory Sentences

In my 2013 column, I noted the trend to create minimum mandatory sentences for certain offenses, regardless of the class and range. That trend has continued. This year, for example, the legislature created new offenses that require an automatic sentence of life without parole for adult defendants. The new offense of “grave torture” requires an automatic life without parole sentence.⁴ This offense is committed when a defendant inflicts severe physical and mental pain while committing a listed offense with the intent to kill but the victim does not die. Grave torture also has a “trigger” provision that if Kennedy v. Louisiana is overturned or the constitution is amended, the sentence will be death.⁵ Especially aggravated rape and especially aggravated rape of a child also require mandatory life without parole for adult defendants.⁶

Range Determinations

Originally, the sentencing range was determined solely based on the defendant’s criminal history. There are now several statutes that specify ranges for defendants that do not depend on the defendant’s criminal history. The “grave torture” offense mandates that any juvenile tried as an adult for the offense must be considered at least a Range III offender, regardless of criminal history.⁷ This is also true for juveniles who commit especially aggravated rape or especially aggravated rape of a child.⁸ Another 2022 amendment to the aggravated human trafficking statute mandates that the offense is an A felony, but anyone convicted of the offense must be considered at least a Range II offender.⁹ This statute also provides that there can be no parole—the defendant must serve 100% of the sentence. For this offense, even the governor loses statutory authority to grant early release to prevent overcrowding.¹⁰

Community Supervision or Life

Certain offenses also require “Community Supervision for Life.” Even with lifetime supervision, there is a way to petition for removal after 15 years, but it is not available for certain offenses, including certain forms of aggravated human trafficking.¹¹

Release Eligibility

This is the most significant change of the year by far. The original sentencing grid even showed when a defendant would become eligible for release. New statutes quickly created exceptions to that. This year, legislation essentially did away with release eligibility for a large number of serious offenses. A detailed analysis is beyond the scope of this column, but the length of time that will actually be served by many defendants will drastically increase under this year’s amendments. For those committing attempted first-degree murder, second-degree murder, vehicular homicide, aggravated vehicular homicide, especially aggravated kidnapping, especially aggravated robbery, carjacking and especially aggravated burglary, there is no release eligibility. That means even statutory sentencing reduction credits (like good time credits) cannot operate to get the defendant out any earlier.

But maybe even more significantly, for a large number of fairly common offenses, there is also no release eligibility other than a maximum of 15% credit. Some of the common offenses to which this applies are aggravated assault, voluntary manslaughter, reckless homicide, aggravated kidnapping, aggravated robbery and burglary, aggravated arson, and various gun and drug offenses.¹² While restrictions on release for some of these offenses have existed for a long time, the addition of additional and common offenses will drastically affect the criminal justice system, including plea bargaining, and will ultimately increase the prison population.

Sentencing Transparency

Another interesting sentencing provision from this year comes in the Transparency in Sentencing for Victims Act.¹³ Now, at sentencing, the trial court must put on the record the estimated number of years and months before the defendant becomes eligible for release. Recognizing how difficult that exercise can be, the Legislature directed the Department of Correction to develop a form for the courts to use in making these estimates.

Conclusion

Although the Tennessee criminal law still relies on classes of offense and range of offender, those categories do not necessarily have the same meaning they used to. It is now not “rapidly ascertainable” what the potential punishment for a given offense will be, as the sentencing commission had envisioned. For both prosecutors and defense lawyers, the role of counsel is more important than ever in making sure that the parties understand the significance of a conviction under a particular statute. |||

WADE DAVIES is the managing partner at Ritchie, Davies, Johnson & Stovall PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.                       

NOTES

1. Tenn. Code Ann. (T.C.A.) § 40-35-101 (Sentencing Commission Comment).
2. Id.
3. Wade Davies, “Preventing Ineffective Assistance of Counsel: Advice Regarding Plea Offers,” Tennessee Bar Journal, Vol. 49, No. 3, March 2013.
4. Chapter 1062, Public Acts 2022, Tenn. Code Ann. § 39-13-117.
5. Id.; See Kennedy v. Louisiana, 554 U.S. 407 (2008)(Eighth Amendment prohibited death penalty for rape of a child without intent to kill).
6. Chapter 1062, Public Acts 2022; Tenn. Code Ann. §§ 39-13-534(b), 535(b).
7. Chapter 1062, Public Acts 2022, Tenn. Code Ann. § 39-13-117.
8. Chapter 1062, Public Acts 2022; Tenn. Code Ann. §§ 39-13-534(b), 535(b).
9. Chapter 1089, Public Acts 2022.
10. Tenn. Code Ann. § 39-13-316(d).
11. This is a good example of how tricky it is to figure out all the consequences that flow from a particular conviction. Tenn. Code Ann. § 39-13-525(a) allows removal from community supervision after 15 years. No exceptions are noted. But Tenn. Code Ann. § 39-13-316(b)(3) has exceptions for certain forms of aggravated trafficking.
12. Chapter 999, Public Acts 2022; Tenn. Code Ann. § 40-35-501(bb) and (cc) and 501(i)(4) & (5).
13. Chapter 952, Public Acts 2022.