AN ANALYSIS OF SENTENCING PRACTICES IN TENNESSEE FROM 1796 TO 1999 BY DAVID L. RAYBIN
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)
We can improve our criminal justice system. The legitimate desire for public safety dictates continued evaluation of how we punish offenders. Knowledge of “where we have been” in this process will assist us in determining where we should be going in the future.
Over the last 200 years Tennessee has experimented with several different sentencing systems which have met with varying degrees of success and failure. This state’s current problems are certainly not unique to this decade or, for that matter, even this century. What follows, then, is a brief treatment of how we have dealt with that “delicate and difficult question.”
In early colonial America the method of punishment for “minor” crimes consisted mostly of whipping, branding and placing the offender in “stocks” on the village green. When Tennessee became a state in 1796 these common law punishments were 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,” so as to abolish capital punishment for offenses such as stealing a horse. 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 thirty-nine, to sit in the pillory for two hours on three different days and to be branded with the letters H T in such manner and on such part of his person as the court shall direct.” See State v. Humphries, 1 Tenn. 306 (1808) for an example of the imposition of such a sentence. The 1807 statute provided that on the second conviction for horse theft the offender “shall suffer death without benefit of clergy.”
To keep punishments “within reason” judges were forbidden to impose a fine of more than fifty dollars unless the sum was imposed by a jury. If the offender could not pay his fine then the sheriff was authorized to “sell out such a person for the shortest term” so as to defray the costs and charges.
While Tennessee was busy whipping and branding its criminals, other states began to adopt what was then known as the “penitentiary system.” This “modem” method required years of confinement in a prison to be built by the government. The first attempt at the “penitentiary system” in Tennessee occurred in 1813 by the adoption of a statute soliciting voluntary subscriptions for the building of a suitable prison. By 1815 only $1,600 had been pledged and the proposal did not result in the building of a single cell.
In 1815, Governor Joseph McMinn requested that the legislature seriously consider building a prison because jurors were declining to convict people in light of the barbaric corporal punishments being inflicted. Governor McMinn further observed that the cost of building a penitentiary could be recovered from the labor of the convicts themselves.
The first “penitentiary bill” was considered and was rejected in 1819. Apart from creating a prison, this statute also carefully defined all of the criminal offenses which were to be punished by imprisonment for various numbers of years. The Nashville Gazette reported that the bill failed to gain approval because of an extensive floor fight over the definition of self-defense. Just as that debate was to be resolved there arose dissension as to where the penitentiary should be located and the bill failed to gain approval.
There was yet another proposal to establish a penitentiary in 1821. This proposal failed because of the continued conflict as to whether the prison should be located in Knoxville or in Nashville. As reported in the Nashville papers, the General Assembly refused to “tax the community” to “support a scheme doubtful in policy.”
In 1826, Governor William Carroll prepared a report for the legislature which contained letters from the governors of six other states concerning 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. With respect to 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.”
The Penitentiary System
In 1829, the legislature finally enacted the “penitentiary bill” which also contained a complete revision of the various crimes and offenses. The Sparta Record declared the new law to be “radical.” The Knoxville Register, on the other hand, applauded the new statute because the “mystery of law was reduced to common sense and common justice.” Clearness was to prevail in the legal profession “so long entangled in the labyrinths of glorious uncertainty, hair-splitting subulation, and sometimes unfathomable absurdity.”
By January, 1831, the new prison was completed at a cost of less than $50,000. It was described by the Tennessee Gazetteer as a “beautiful and substantial prison,”located in the western suburbs of Nashville.
The governor proclaimed the “penitentiary law” in effect as of January 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, was required to cut and make his own suit, the first work ever done in the penitentiary.
The structure of the 1829 sentencing law was not unfamiliar. Each offense prescribed a maximum and minimum penalty. Robbery was punished by five to fifteen years as was burglary committed at night. Grand larceny, defined as the theft of an item valued at over $10, was punished by three to ten years; petit larceny was punished by one to five years. Counterfeiting was punished by imprisonment from three to fifteen years. Maiming another person — such as cutting off hands, legs or feet, was only punished from two to ten years.
As more recently noted in State v. Moss, 553 S.W.2d 337, 342 (Tenn. 1977), the 1829 law transferred the sentencing authority from the court to the jury because of a “distrust of a powerful judiciary.” Thus, the jury imposed the sentence at the same proceeding where guilt was determined. The 1829 sentencing structure was what we would now call a “determinate sentence.” In other words, the jury would pick a specific number of years from within the minimum and maximum provided for by law, and that was the sentence imposed for the offense. Thus, if the crime carried a sentence of from three to ten years, the jury could sentence to as little as three years or up to and including ten years. The new statute applied to everyone except, of course, slaves who were to be “tried and punished according to the laws heretofore enacted.”
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 one hundred percent of their sentence. As in modern times, however, the increasing prison population prompted the enactment of early release provisions. The two hundred available 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 that good behavior should “not go unrecognized and unrewarded.”
In addition to “good time,” the governor’s pardoning power was also invoked. In 1843, the legislature permitted “partial pardons” – commutations so that the governor could reduce the sentence of death to life imprisonment. In 1843, three such prisoners received commutations – two of them under the unanimous recommendations of the Supreme Court and the other “because of a strong conviction of the insanity of the offender.” In 1845, four prisoners received regular pardons.
To keep the prisoners busy they were sent to work upon various public projects. The construction of the state capital building between 1845 and 1855 was accomplished by the addition of 135 “picked and reliable men” from the prison who were employed in the work of cutting stone.
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, Governor Andrew Johnson opposed the practice of teaching some 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.”
In 1855, a fire reduced the penitentiary to a “pile of smoking ruins.” The prison was rebuilt and by 1857 contained about four hundred inmates. Most were found to be illiterate but eleven were listed as receiving a “classical education.”
Unfortunately, the prison was now seriously overcrowded and, coupled with the poor sanitary conditions, was described as bordering on “slow murder.” A prison report deemed it miraculous that only twenty-seven deaths had occurred from among the prison population.
By 1860, the comptroller reported that, since its establishment, the penitentiary “had been a vampire upon the public treasury.” 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.
Following the Civil War the governor reported that the number of convicts in the penitentiary has been “rapidly increasing.” In 1866, Governor William Brownlow advised that “far too many former federal soldiers and former slaves were sentenced to the maximum punishment allowed by law” due to the “violent prejudices and high passions engendered by the war.” He estimated that “twenty-five percent of the convicts now in the state prison are there on account of the color of their skin.”
In 1868, the penitentiary was found to be “overcrowded, to the injury of the discipline, and also of the health, of the institution.” As a result, the legislature enacted a provision in 1870 for statutory good conduct time which was to be calculated by the superintendent of the penitentiary. This statute granted one month of credit for the first year, two months for the second, three months for the third, and three months for each subsequent year to the tenth year, and then four months for each remaining year of the term of imprisonment.
The deplorable state of the penitentiary, as well as the poor treatment of soldiers during the war, prompted the constitutional convention of 1870 to provide in Article 1, §32 “that the erection of safe and comfortable prisons, the inspections of prisons, and the humane treatment of prisoners shall be provided for.” Nevertheless, a legislative committee complained that the disciplinary measures imposed on the prisoners was too severe. This included hanging the prisoners up by their thumbs and whipping the prisoners with a strap which, fortunately, was “wide enough to avoid laceration.” In 1903, the governor reported that children as young as eleven years of age had been found to be resident in the penitentiary.
Apart from the “early release” system of good conduct credits, the clemency powers of the governor were enlarged. In 1903 Governor 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.” The cost of maintaining the prison system was approximately $200,000 most of which was paid for by profits from prison labor.
The Indeterminate Sentence Law of 1913
By the turn of the century many states adopted statutes which permitted the “parole” of prisoners after they had served a portion of their sentence. In 1905, Governor James Frazier proposed such a system for Tennessee:
While the primary object of the law in inflicting punishment for crime is to prevent the law-breaker from a repetition of his wrong, and by his example to deter others from committing like offenses, it should also have for its purpose his reformation and restoration to useful citizenship. No penal system is perfect that does not have as one of its objects the reformation of the criminal. Many persons violate the law and must be punished who are not at heart criminals. Many who commit crime for the first time and are sent to prison, particularly the young, become penitent and, if given a chance, would reform and make useful and respectable citizens. Some system of paroles should be provided under which the governor could give such prisoners a chance to make useful members of society, without granting an absolute pardon, so that if the prisoner violated the confidence reposed in him he could be retaken and again committed to prison.
In 1913, the legislature provided for a parole system as part of the new indeterminate sentence law. The judge, rather than the jury, would now impose the sentence. 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. The judge could then impose a maximum sentence from the statutory minimum up to the statutory maximum. For example, grand larceny carried a sentence of three to ten years. Everyone convicted of this offense had a minimum sentence of three years which was set by law. The maximum sentence could be anywhere from three years to ten years. The person would be eligible for parole after serving three years and if, granted parole, was on parole for the remaining seven years assuming that the judge fixed the maximum sentence at ten years. Thus, the lowest sentence for grand larceny was three to three years and the highest was three to ten years.
In 1923, the sentencing authority was returned to the jury which would only impose the top number of the indeterminate sentence. The statutory minimum sentence, as noted, fixed the date of parole eligibility. Good conduct credits reduced both the parole eligibility date (the minimum sentence) and the expiration date (the maximum sentence).
In 1931, the legislature enacted a credit system in addition to “good time” which was called “honor time.” This further reduced the sentence two months for each year of service.
Also in 1931, the legislature enacted, for the first time, statutes permitting probation. The trial judge was now granted the authority to “suspend” a sentence and place the offender on supervision for the duration of his or her sentence. The enactment of probation statutes was a result of an earlier decision of the Tennessee Supreme Court rejecting the practice. In Spencer v. State, 125 Tenn. 64, 140 S.W. 597 (1911) the Court had 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.” In its earliest form, the statute permitted probation for misdemeanors or any felony for which the maximum punishment did not exceed five years.
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.
As in other states, the legislature enacted a habitual criminal statute in 1939 requiring a life sentence, without parole, for persons who had been previously convicted of certain crimes.
In 1948, the Tennessee Supreme Court decided that the indeterminate sentence law did not apply to the offenses of murder or rape. The penalty for these offenses was to be a determinate or fixed sentence. This interpretation was apparently due to the fact that these offenses carried the death penalty in addition to terms of imprisonment. When armed robbery was later made a capital offense, the punishment was a determinate rather than an indeterminate sentence. By statute, parole eligibility for a determinate sentence was fixed at one-half of the sentence imposed by the jury. By judicial construction, no good or honor time credits were deducted from the parole eligibility date for such determinate sentences. The credits did, however, reduce the “sentence expiration” date. The credits still impacted the parole eligibility date for indeterminate sentences.
In 1957, the legislature enacted another type of release called “probationary parole.”
If the prisoner had an offer of employment, the parole board was authorized to release the prisoner six months before the date of his regular parole where eligibility for regular parole was less than five years. Where eligibility for parole was more than five years, probationary parole could occur as much as one year earlier than the regular parole date. For all intents and purposes, probationary parole was the same as regular parole; albeit earlier.
The various forms of indeterminate and determinate sentences coupled with various good and honor time credits resulted in a confusing mass of conflicting statutes. One statute provided that a life sentence could be served in twenty-five years less good conduct credit, which made the prisoner eligible for parole in about thirteen and half years. However, if the prisoner was sentenced to one hundred years he or she would be eligible for regular parole in fifty years, and probationary parole in 49 years. In an apparent effort to equalize things, the legislature enacted yet another statute which provided that for sentences of over fifty years, a prisoner would be eligible for parole after serving thirty years. By administrative construction, this provision was interpreted to mean that the thirty year “cap” applied to multiple consecutive sentences no matter how long their length.
Doubling the Minimum
In 1973 and 1974, the legislature enacted major alterations to the indeterminate sentence law. As noted earlier, the statutory minimum punishment applied to all prisoners serving indeterminate sentences and fixed the parole eligibility date. In 1973 the legislature amended the indeterminate sentence law so that the jury could fix a higher minimum sentence. The jury could now impose a minimum sentence up to twice the statutory minimum fixed by law. Thus, grand larceny, which carried three to ten years, could result in a sentence as high as six to ten years. Because the minimum sentence was used for parole eligibility, this had the effect of essentially doubling the parole eligibility date for many offenders. As part of the same statute, the legislature increased the number of determinate sentences to include murder in the second degree, rape, armed robbery and kidnapping for ransom.
While the legislature was busy increasing sentences, other statutes had the effect of further reducing parole eligibility. In 1972, a separate credit system was enacted called “incentive time.” This permitted a reduction of thirty days for the first year, sixty days a year through the tenth year and ninety days thereafter. This was in addition to the credits received for good and honor time. By administrative construction, incentive time reduced the parole eligibility for determinate sentences as well as indeterminate sentences. Another form of release, mandatory parole, was created which was calculated off the maximum sentence.
By 1979 the entire correctional system was in a state of crisis. Governor 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.
The clemency-for-cash scandal heightened the public’s perception that crime was “getting out of hand.” At the request of Governor Lamar Alexander, the legislature enacted a sweeping new law to increase the punishment for certain felonies. The new statute was called the Class X Felony Law of 1979.
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 forty percent of the sentence with no reduction for good conduct credits of any sort. Furloughs and other minimum security programs were abolished.
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 indeterminate sentence law was repealed and all sentences were now determinate in nature. Most significantly, the sentencing authority was transferred from the jury to the judge, thereby allowing consideration of the defendant’s prior record before a sentence was imposed. Parole was fixed as a percentage of the 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. There was little, if any, prison construction. The prison population increased dramatically.
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. As a result of these problems, the General Assembly was called into an extraordinary session devoted exclusively to prisons. A Select Oversight Committee on Corrections was established.
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 which would come off both the parole eligibility date and the expiration date. These credits were known as “prisoner performance credits” and could reduce the sentence by as much as fifteen days per month; in 1988 this was increased to sixteen days per month. 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. This statute allowed the parole date to “float” depending on the numbers of persons in the prison system at any one time.
The Tennessee Sentencing Reform Act of 1989
In 1985, the legislature created the Tennessee Sentencing Commission which was to draft a new criminal code and revise the sentencing statutes. After four years of study the Commission presented several alternatives which had varying degrees of fiscal impact.
After much debate, the legislature enacted the Tennessee Sentencing Reform Act which became effective on November 1, 1989. This new law is currently in effect.
The 1989 statute retained the earlier procedural mechanism requiring that the judge impose the sentence following a sentencing hearing. 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 had the capacity to appeal sentencing decisions.
Parole eligibility was fixed as a percentage from twenty to sixty percent depending on the number of prior felony convictions. Sentencing credits of up to sixteen days a month could reduce the parole eligibility date as well as the sentence expiration date. The “safety valve” continued to apply.
“Truth” In Sentencing
In 1993, the Tennessee legislature directed that the Tennessee Sentencing Commission “conduct a study of the various methods by which Tennessee would adopt a sentencing procedure under which members of the public would know with some degree of certainty the length of time a defendant would actually be incarcerated on a given sentence.” As this paper demonstrates, absolute certainty in sentencing has existed in Tennessee for only three years – from 1831 to 1834. For the remaining years clemency, parole, credits and other schemes prevented a ready calculation of a prisoner’s sentence. As Justice Henry noted in Farris v. State, 535 S.W.2d 608 (Tenn. 1976), “only the convict population” know when they might be released.
The Tennessee Sentencing Commission proposed several alternative plans which would achieve varying degrees of “truth in sentencing.” The proposal attached a cost figure for each alternative, depending on whether parole would be retained or abolished, and whether the sentences would increased or decreased. Each proposal was supported by documentation and statistical analysis.
The legislature responded to the Sentencing Commission’s proposals by abolishing the Sentencing Commission in 1995. New laws were then enacted which abolished parole for serious crimes such as armed robbery, rape, and murder. The “presumptive minimum” sentence for these offenses was increased by 50 percent. However, the legislature did not reduce the overall length of any sentences, resulting in an enormous increase in the time prisoners would serve before they “flattened” their sentences and were released with no supervision whatsoever.
Prison construction began in earnest. Private corporations contracting to build and operate some of the institutions. Correctional facilities became a “growth industry” in rural western Tennessee.
“Crime and punishment” issues became very visible by the middle of the decade. The Tennessee Constitution was amended to include a “victim’s rights amendment,” as well as removing the 1870 provision requiring that the legislature erect “comfortable” prisons. The spiraling legislative increase in sentences abated in 1999 when Tennessee discovered that there was financial crisis requiring a massive tax increase.
There are now multiple sentencing systems in our jurisdiction. More serious offenses have no parole and no post-sentence supervision. Less serious offenses have low parole dates, and in effect, the parole board determines the length of the sentence. Some misdemeanor offenders serve more time than felons.
While there is an “oversight” legislative committee on corrections, there is no longer any central body reviewing the criminal justice system as a whole. Successful programs in one locality are not developed in others because there is no mechanism for an exchange of information. There is no systematic analysis to ascertain which components of the criminal justice system are working well and which could be improved.
When viewed from the perspective of two hundred years, the most obvious conclusion to be drawn 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 eighty-four years until the enactment of the indeterminate sentence law in 1913. It was another sixty 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.”
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 radically 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 as well as the capacity of the prisons. The enactment of a multitude of prison credit systems has both confused and confounded the ability of anyone to calculate a given sentence. There have been approximately twenty different credit systems which often conflict with one another.
The “safety valve” was originally designed to be temporary in nature. It is now a permanent part of our system. This further complicates the calculation of many felony sentences.
There has been much discussion as to abolishing parole for all offenses as other states have done. Even before the formal establishment of the parole system, governors would grant early release under the clemency powers, authorized by statute and the constitution. However, clemency has been enormously restricted in recent years because of the pardon scandal.
Parole has had a “leveling” effect on sentencing practices. Where the jury would impose an enormous sentence the parole board could ameliorate its effect by granting parole. Under our current system, the jury no longer imposes the sentence, the judge does so after reviewing an extensive presentence report. Moreover, the necessity for a parole system is diminished by the ability of the trial judge to grant probation for many offenses. Meaningful appellate review also serves to temper extreme sentencing practices.
Although our sentencing structures have been altered many times, the current statutory length of sentences is really 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 one to six years. In 1829, the punishment for burglary was three to ten years; today it is two to twelve years.
It should be recalled that the 1829 “penitentiary” law was enacted to replace the previous practice of corporal punishment consisting of branding and whipping people. Incarceration will always be necessary for some offenders. However, what may have been an entirely valid length of imprisonment in 1829 may no longer be appropriate in 2000. What is clear is that there is still great uncertainty as to what a sentence length actually “means” in terms of “real time.” This is not to suggest that everybody should serve 100% of their sentence. “Truth in sentencing” is less important than accuracy and predictability in sentences.
Some modifications to our current structure are in order. It is beyond the scope of this paper to make specific recommendations other than to suggest the formation of a criminal justice commission to assess our current procedures. Perhaps by reviewing, and avoiding, some of the unsuccessful schemes of the past can we achieve a more balanced and stable sentencing system in the future.