The disposition and treatment of those who commit crimes and have to be punished therefore is always a delicate and difficult question. It should be a source of genuine satisfaction to the people of Tennessee that we have discovered and have in successful operation a system that comes as near solving that perplexing problem as any that has yet been tried. —Governor James Beriah Frazier (1903)¹

Introduction

The truth is that the crime rate does not drive a state’s prison population — policy choices do. Last year the Tennessee legislature enacted a “Truth in Sentencing” scheme where most penitentiary-bound prisoners will now serve between 85% to 100% of their time with no parole. The increases are staggering: a burglary conviction can now net nine years in prison where under prior law parole could occur in about three years.

Gov. Bill Lee reluctantly allowed this legislation to become law without his signature, saying, “Widespread evidence suggests that this policy will result in more victims, higher recidivism, increased crime and prison overcrowding, all with an increased cost to taxpayers.”² At an eventual cost of $25 million a year, the proponent of the legislation, Speaker of the House Cameron Sexton replied, “If we need to build more prisons, we can.”³

Recent, horrid homicides in Memphis prompted the legislature to propose even more amendments to our criminal statutes.⁴ These would abolish probation for many crimes and remove parole for other offenses. Soon virtually all offenses will be punished by mandatory incarceration with little or no alternative sentencing.⁵ Over the last 200 years, Tennessee has experimented with several sentencing systems which have met with varying degrees of success and failure. This state’s problems are not unique to this decade or even this century.

This article first addresses the history of our criminal laws and arrives at the current legislation which rejects rehabilitation as a sentencing option. Second, the article advocates a more rational method of amending our criminal laws.

Corporal Punishment

In early colonial America the method of punishment for criminals consisted mostly of whipping, branding and placing the offender in “stocks” on the village green. When Tennessee became a state in 1796, this common law method of punishment was utilized with great frequency. Most offenses, however, were punished by death.

In 1807, Governor John Sevier advised that, “humanity and policy call aloud for a revisal of the criminal code of our laws,” to abolish capital punishment for offenses such as stealing a horse.⁶ That same year the legislature enacted a criminal code which had a very vague definition of offenses but very specific definitions of punishment. A horse thief was now to receive “on his or her bare back, a number of lashes, not exceeding 39,” to sit in the pillory for two hours on three different days and to be branded with the letters “HT in such manner and on such part of his person as the court shall direct.”⁷

While Tennessee was busy whipping and branding its criminals, other states adopted what was then known as the “penitentiary system.” In 1826, Gov. William Carroll prepared a report for the legislature which contained letters from the governors of six other states about the successful operation of penitentiaries in those jurisdictions. The new penitentiary proposal also contained a complete revision of the penal laws. This proposal failed again because of the expense of the prison. Regarding changing the methods of punishments, the opponents contended that the “quantity of suffering under the penitentiary system will far exceed that which is experienced under the criminal laws now in force and jurors will be equally disposed to acquit.”⁸

The Penitentiary System

In 1829, the legislature finally enacted the “penitentiary bill” which also contained a complete revision of the crimes and offenses. The Sparta Record declared the new law to be “radical.”⁹ The Knoxville Register applauded the new statute because the “mystery of law was reduced to common sense and common justice.”¹⁰ By January 1831 the new prison was completed at a cost of less than $50,000. It was described by the Tennessee Gazette as a “beautiful and substantial prison,” in the western suburbs of Nashville.¹¹

The governor proclaimed the “penitentiary law” in effect as of Jan. 1, 1831, and all persons convicted after that date were subject to the new penal law. Twenty-four days later, one George Washington Cook was convicted in Jackson and was promptly deposited in the penitentiary. Cook, a tailor, had to cut and make his own suit, the first work ever done in the penitentiary.¹²

In September 1831, Gov. Carroll, extolling the virtues of the new system, remarked:

If reformation of a man can be produced it is most reasonable to expect it to occur under the influence of the penitentiary system. The violator of the law is shut up within the walls of a prison secluded from a knowledge of the passing events, obligated to labor throughout the day, without an opportunity of holding converse with his fellow convicts and when his daily labor is over, is locked in a cell with no other companion than his Bible and his own thoughts. Surely in his retirement he will reflect on the follies of his past ill spent life.¹³

This new prison system with its Bibles, work, silence and solitary confinement contemplated that the prisoners would be reformed by doing penitence for their crime.¹⁴ It is — by the way — from the word “penitence” we get the term  “penitentiary.” The new statute applied to everyone except slaves who were to be “tried and punished according to the laws heretofore enacted.”¹⁵

Good Times and Bad

Other than slaves, everyone convicted of any felony went to the penitentiary. In those days there was no such thing as probation or parole and, at least initially, all prisoners served 100% of their sentence. As in modern times, however, the increasing prison population prompted the enactment of early release provisions.

The 200 beds at the first penitentiary were quickly filled and thus, in 1835, the General Assembly enacted the first good conduct credit system whereby the governor could deduct two days of service for each month served, so good behavior should “not go unrecognized and unrewarded.”¹⁶

In 1839, 10% of the prison population received an early release. Gov. James K. Polk reported that the good conduct credit had a “beneficial effect” to give the prisoner a “strong motive to conduct himself with industry and propriety; the effect [of the credits] has generally been to preserve order, regular habits of industry and a ready obedience to the orders of the officers of the institution.”¹⁷

To keep the prisoners busy, they were sent to work upon various public projects. Constructing the state capital building between 1845 and 1855 was accomplished by adding 135 “picked and reliable men” from the prison employed in the work of cutting stone.¹⁸

From this accomplishment the government hit upon the idea of running coal mines manned by prisoners. This competition with the “labor of free men” caused riots which had to be suppressed by the militia. Numerous bills were proposed to prevent the “teaching of trades” to convicts. In 1853 Gov. Andrew Johnson opposed the practice of teaching inmates stone masonry which enabled “the criminals to engrave names upon the tombs of the departed.” He requested that convicted felons be excluded from those persons having charge of the cemeteries: “if it is degrading to be associated with a felon while we are living, it must be more so to be associated with them after we are dead.”¹⁹

By 1860 the comptroller reported that, since its establishment, the penitentiary “had been a vampire upon the public treasury.”²⁰ A proposal was made to lease out the penitentiary to a private concern. This proposal failed when it was discovered that the work of the prisoners had turned a profit of over $50,000.²¹

In 1868, the penitentiary was “overcrowded, to the injury of the discipline, and also of the health, of the institution.”²² The legislature enacted a provision in 1870 for statutory good conduct time to be calculated by the superintendent of the penitentiary.²³

The “walls” — the then-new Tennessee State Penitentiary — opened in 1898.²⁴ The cost of maintaining the prison was approximately $200,000 most of which was paid for by profits from prison labor.

The Indeterminate Sentence Law of 1913

In 1903, Gov. Benton McMillin complained that “there are so many applications for executive clemency as to consume time which might be profitably devoted to other important interests of the state.”²⁵ In 1913, to free the governor from being the only source of early release, the legislature provided for a parole system as part of the new indeterminate sentence law.²⁶ This statute retained the existing criminal code and existing statutory penalties but provided that the minimum penalty for each crime was to be considered the parole eligibility date for all offenders.

In 1931, the legislature enacted, for the first time, statutes permitting probation.²⁷ The trial judge was now granted the authority to “suspend a sentence” and place the offender on supervision during his or her sentence. The enactment of probation statutes resulted from an earlier decision of the Tennessee Supreme Court rejecting the practice. In Spencer v. State, the Court held that, while it might “promote much good,” probation was open to much abuse because to place “hundreds of men” under the personal power of a single judge, “is nothing short of despotism.”²⁸

Under the original indeterminate sentence law, parole was granted by the “prison commissioners.” In 1937, the legislature created the pardons and parole board. Parole officers were to be hired to check on the conduct, behavior and progress of the parolees.

Class X

By 1979, the entire correctional system was in a state of crisis. Gov. Ray Blanton was commuting sentences with reckless abandon. It was later learned that some prisoners were purchasing clemency, resulting in the indictment of numerous government officials and the early replacement of the governor.²⁹ In light of a new “crime wave,” the legislature enacted a sweeping new law at the request of Gov. Lamar Alexander to increase the punishment for certain felonies. The new statute was called the Class X Felony Law of 1979.³⁰

This new statute imposed mandatory minimum sentences for crimes such as armed robbery, rape, murder and certain drug offenses. Plea bargaining was restricted, bail following conviction was eliminated and the early release of Class X offenders was prohibited. The statute required that prisoners convicted of a Class X Felony would not become eligible for parole until they served 40% of the sentence with no reduction for good conduct credits of any sort. Furloughs and other minimum-security programs were abolished.³¹

The history of the Class X law showed that it protected no one. While well intentioned, the Class X statute soon contributed greatly to prison overcrowding. The prisons filled to overflowing while the work release centers sat idle.

Sentencing Reform Act of 1982

In 1982, the legislature substantially changed the sentencing structure and implemented many attributes of the Class X Felony law to the remaining felonies not earlier addressed.³² Parole eligibility was fixed at 30% but there was now no reduction for good conduct credits of any sort for any crime.

The indeterminate sentence law was repealed, and all sentences were now determinate. Most significantly, the sentencing authority was transferred from the jury to the judge, allowing consideration of the defendant’s prior record before imposing a sentence.

While effecting great procedural reforms, the 1982 law was drafted without the benefit of population projections to ascertain the impact of the law on prison capacity. Because the statute prohibited good conduct credit of any sort, there was no early release mechanism to regulate the number of persons in the prisons.

By 1983, the Department of Correction was under the effective control of a master appointed by the federal court. In 1985, prison riots occurred throughout the system causing millions of dollars in damage. Because of these problems, the General Assembly was called into an extraordinary session devoted exclusively to prisons.

To alleviate overcrowding, the legislature enacted two provisions in 1985 which had a profound effect on the prison system. The first was to restore sentencing credits. The General Assembly also created the “safety valve” which permitted a further reduction in parole eligibility when the governor declared that an “overcrowding” emergency existed.

The Tennessee Sentencing Reform Act of 1989

In 1985, the legislature created the Tennessee Sentencing Commission to draft a new criminal code and revise the sentencing statutes. After much debate, the legislature enacted the Tennessee Sentencing Reform Act which became effective on Nov. 1, 1989.³⁵ The entire criminal code was revised and many offenses, such as theft, were consolidated.

The new law classified all felonies according to their seriousness and the sentencing ranges were divided depending upon the number of prior convictions. Within those ranges, the judge retained a great deal of discretion depending upon enhancing and mitigating factors. Both sides could appeal sentencing decisions.³⁶

Parole eligibility was fixed as a percentage from 20% to 60% depending on the number of prior felony convictions. Sentencing credits of up to 16 days a month could reduce the parole eligibility date and the sentence expiration date. The “safety valve” continued to apply.

Truth In Sentencing

In 1995, the legislature abolished the Sentencing Commission.³⁷ Every year new laws were enacted gradually increasing our sentences. This resulted in a veritable orgy of crime legislation, one statute at a time.

The 2022 Truth in Sentencing law was not just more of the same. It was a massive increase in the number of offenses for which prisoner could expect to serve almost the entire sentence. The carefully constructed sentencing ranges of the 1989 law are now reduced to insignificance since most sentences are now near 100%.

The goal of “sentence certainty” serves but one aspect of why we have prisons: there seems to be no rehabilitation. Supervision after incarceration is limited for many offenses and non-existent for others. Long-term inmates have no opportunity to reintegrate into society. The new law does nothing about altering the standard of appellate review which is now an abuse of discretion standard: only a handful of cases have resulted in sentencing modification on appeal. What about the enormous number of consecutive sentences? There appears to be no modification of the consecutive sentencing guidelines. We have no sense of how judges will impose sentences under the new law. Will pleas negotiations be the same? Will we have more expensive trials or fewer? We do not know.

Every significant change in the sentencing law in Tennessee’s entire history has come from the governor’s leadership. This includes the 1829 law and the 1989 sentencing law and everything between including the ill-advised Class X law of 1979, which I helped draft.

This most recent Truth in Sentencing law is unique; it emanated from the pens of well-intentioned but, respectfully, misguided legislators. The fiscal note for the proposals changed with every new amendment. There was no rigorous cost analysis and population projections.

The so-called Truth in Sentencing law was enacted in a vacuum. Something as important as our criminal justice system needs input from all the stakeholders who bring many views to the table. We do not build roads or schools in this fashion but permit our prison system to grow with little oversight.

Conclusion

When viewed from the perspective of 200 years, the most obvious conclusion is that our sentencing structure has been dramatically altered with increasing frequency in recent years. The original penitentiary law of 1829 remained substantially unchanged for 84 years until the enactment of the indeterminate sentence law in 1913.

It was another 60 years before there were any major modifications. These changes, which occurred in 1973, were themselves altered less than six years later by the enactment of the Class X Felony Law. Three years later the legislature passed the 1982 Sentencing Reform Act. In another three years the legislature created the “safety valve.” Four years later, in 1989, a new sentencing law was enacted. In less than five years the legislature was considering yet another revision under the label of “truth in sentencing.” And then began 25 years of ever-increasing sentences for dozens of criminal offenses. The 2022 Truth in Sentencing law was the final — and perhaps fatal — conclusion to this process.

Since 1970, the total jail population has increased 681%. The cost of the penitentiary and jail system is staggering: a billion dollars a year. Counting those in our county jails, Tennessee now incarcerates approximately the same number of people as does the entire continent of Australia, which has four times the population.³⁸

In Tennessee, African American people constitute 18% of state residents, but 36% of people in jail and 42% of people in prison. We need to discuss mass incarceration of African American men and make it the forefront of a new movement for racial justice in America.³⁹

The frequent alteration of sentencing procedures in recent years has done much to destabilize confidence in the criminal justice system. A sentence imposed today may be altered by legislation tomorrow.

Another conclusion which may be drawn from the historical analysis is that “good conduct” credits by whatever name have been in place for most of our state’s history. Whenever the legislature abolishes these credits, they are soon restored as a method to both control the prisoners and the capacity of the prisons. The Class X law of 1979 and the 1982 sentencing law had as their cornerstone the elimination of sentencing credits. In a mere six years the credits were restored.

The “safety valve” was originally designed to be temporary. It is now a permanent part of our system. This further complicates the calculation of a sentence.

The 2022 law is the first step to abolishing parole. Even before the formal establishment of the parole system, governors would grant early release under the clemency powers, authorized by statute and the constitution. Clemency has been enormously restricted in recent years because of Blanton’s pardon scandal.

Although our sentencing structures have been often altered, the statutory length of sentences, as set forth by current law, is not that different from those statutes first enacted in 1829. In 1829, involuntary manslaughter was punished from one to five years. Today it is a very similar at one to six years. In 1829, the punishment for burglary of a dwelling was three to 10 years; today, for one with no record, it is three to six years.

The 1829 law was enacted to replace the previous practice of corporal punishment consisting of branding and whipping people. What may have been a valid term of imprisonment in 1829 may no longer be appropriate in 2022. Perhaps we should revisit the length of our sentences.

We have commissioners of education and commissioners of roads, but the commissioner of correction only houses prisoners and has no impact on who goes into his or her penitentiary system. I suggest that we do what other states and the federal government have done. I suggest that we do what we did in Tennessee between 1986 and 1995. We should have a full-time sentencing commission made up of professionals in the criminal justice system with judges, defense lawyers, prosecutors and citizens such as we had before. Perhaps we should add an ex-offender or two to give us some perspective. We need that.

A sentencing commission is also a tool for discovering problems before they get out of hand. A full-time sentencing commission is the only solution to making meaningful progress. We cannot have committees or commissions who come together every 20 years to fix the system. We advocate routine maintenance on our cars, so why not our criminal justice system?

Crime rates do not drive a state’s prison population — policy choices do. “Truth in Sentencing” means whatever we want it to mean. Perhaps what we seek is predictability in sentencing. A sentencing commission can help us achieve that equally laudable goal. |||

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DAVID RAYBIN has practiced criminal and federal civil rights law in Nashville for 40 years. He is  the author of the three-volume treatise, Tennessee Criminal Practice and Procedure. Raybin is a 1973 Order of the Coif graduate of the University of Tennessee College of Law. He participated in drafting the 1979 Class X felony law, the 1982 judge-sentencing statute and the 1989 Sentencing Reform Act mentioned in this article.

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NOTES

1. 8 Dr. Robert White, Messages of the Governors of  Tennessee (1972) 292. This work, published by the Tennessee Historical Commission, is cited hereinafter as Messages, by volume and page number. White was the State Historian from 1955 to his death in 1970. He compiled a detailed history of our governors and reproduced messages the governors  transmitted to the legislature. The work was supplemented and ended with the 1907 administration of Gov. Cox. The author wishes it would have included one more: Malcolm R. Patterson, one of the most controversial governors in Tennessee’s history.
2. “Lee doesn’t veto, lets ‘truth in sentencing,’ bill penalizing homelessness go into law without signature.” Tennessean, May 6, 2022. http://bit.ly/3FlNcO3
3. Id.
4. “After Memphis killings, officials push harsh sentencing laws,” Associated Press, Sept. 8 2022 https://bit.ly/3W9F0Ye
5. See “McNally, Sexton name task force to study crime, punishment,” TN News Journal On the Hill. Sept. 8, 2022. https://bit.ly/3VV3FzW. As this article goes to print, additional crime legislation is being promulgated  which will expand the no-parole statutes.“‘Truth in sentencing’ bill eliminates parole for some felony crimes.” Action News5, April 23, 2022. https://bit.ly/3V70wvT. See also, “Recommendations for Criminal Justice Reform in Tennessee,” Governor’s Task Force, 2015. https://bit.ly/3uKUeHf.
6. 1 Messages 246.
7. State v. Evans, 1 Tenn. 211, 212 (1806).
8. 2 Messages 168.
9. 2 Messages 285.
10. 2 Messages 281
11. 2 Messages 285.
12. 2 Messages 286.
13. 2 Messages 341.
14. 8 Messages 294 (“Many who commit crimes and are sent to prison become penitent, and if given a chance, would reform and make useful and productive citizens.”)
15. Public Acts of 1829, Chapter 5.
16. 3 Messages 116 (Tennessee was one of the first states in the nation to enact such a provision).
17. 3 Messages 445.
18. 4 Messages 67.
19. 4 Messages 567.
20. 5 Messages 153.
21. Id.
22. 5 Messages 629.
23. State v. McClellan, 9 S.W. 233, 234–35 (1888)
24. Tennessee State Prison 1898-1992: On the Inside, www.tnstateprisonfilm.com.
25. 8 Messages 37-38.
26. See, Woods v. State, 169 S.W. 558 (1914).
27. Public Acts of 1932, Chapter 76.
28. Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 599 (1911).
29. “How one of Tennessee’s most dramatic political moments unfolded 40 years ago this week,” Tennessean,  Jan. 16, 2019. https://bit.ly/3Pjn5Mv.
30. See, David Raybin,  “The Class X Felonies Act of 1979.” 14 Tennesee Bar Journal 25, Aug. 1979.
31. Id.
32. See, David Raybin,  “Tennesee Criminal Sentencing Act of 1982.” 18 Tennesee Bar Journal 36, Aug. 1982.
33. “Tennessee Prison Riot Scars Don’t Heal Quickly,” Associated Press, June 30, 1986. https://apnews.com/article/567a25e97090b784c4022893132f4bcd
34. The author was privileged to serve on the Commission for its entire existence.  See also, State v. Cummings, 868 S.W.2d 661, 665 (Tenn. Crim. App. 1992)
35. See extensive discussion in  State v. Bise, 380 S.W.3d 682, 691 (Tenn. 2012).
36. Id.
37. State v. Menke, 2018 WL 2304275, at 6 (Tenn. Crim. App. May 21, 2018) (“The sentencing commission terminated June 30, 1995.”).
38. See  the charts on Prison Policy Initiative.  www.prisonpolicy.org/profiles/TN.html. (“Tennessee has an incarceration rate of 838 per 100,000 people ((including prisons, jails, immigration detention and juvenile justice facilities)), meaning that it locks up a higher percentage of its people than any democracy on earth.”).
39. Black Americans are incarcerated in state prisons at nearly five times the rate of white Americans. “The Color of Justice: Racial and Ethnic Disparity in State Prisons,” The Sentencing Project, Oct. 13, 2021. https://bit.ly/3iMJyFm. The United States incarcerates more people, in both absolute numbers and per capita, than any other nation in the world. Since 1970, the number of incarcerated people has increased sevenfold to 2.3 million in jail and prison today, far outpacing population growth and crime. “Mass Incarcertaion,” 2022 ACLU www.aclu.org/issues/smart-justice/mass-incarceration/mass-incarceration-animated-series. See also the charts on Prison Policy Initiative, above.