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January 3, 2023

"The Truth About Truth in Sentencing: Tennessee’s Experience"

The title of this post is the title of this terrific new article in the Tennessee Bar Journal authored by David Raybin.  I recommend the very readable piece in full, and here are excerpts from the introduction and conclusion:

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.” 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.”

Recent, horrid homicides in Memphis prompted the legislature to propose even more amendments to our criminal statutes. 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....

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.  In Tennessee, African American people constitute 18% of state residents, but 36% of people in jail and 42% of people in prison....

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?

January 3, 2023 at 07:56 PM | Permalink


The commission will be a ratchet that only goes one way (pro-crime).

Posted by: TarlsQtr | Jan 3, 2023 11:17:47 PM

Tarls - Why do you assume that a Tennessee sentencing commission would only be pro-defendant? I assume that there would be at least one prosecutor or judge on such a commission and even if there wasn't, I don't know that such a commission's recommendation or report would have any binding or lasting impact. Getting rid of parole (as they have started to do in Tennessee) might sound appealing to citizens but the long term impacts would probably include more inmates coming out unprepared and as such, the recidivism rate would likely increase without a parole/early release incentive. Brett Miler

Posted by: Brett Miler | Jan 4, 2023 11:06:01 AM

The problem is not truth in sentencing. Truth in sentencing is a good thing as it makes the sentencing outcomes more predictable. (As both a prosecutor and a defense attorney I have routinely faced questions from victims and defendants about how much time will really be served on a given sentence. Currently, the answer is "anywhere between x -- a low parole eligibility date -- and y -- a high sentence completion date.") And on open pleas, I have certainly seen judges adjust sentences to try to have parole eligibility fit their target date of how long they think the defendant needs to serve.

The problem is that truth in sentencing requires adjusting the sentencing range to reflect what you really want to be served. If you don't have the sentence reflect the time that you want served, truth in sentencing does not work.

Posted by: tmm | Jan 4, 2023 11:36:26 AM

Brett, why didn't you just say that the nicer we are to criminals the better they will behave.

Posted by: federalist | Jan 4, 2023 12:28:30 PM

Federalist - I just believe that the notion that we must make criminals miserable to be safer as a society is outdated. Brett Miler

Posted by: Brett Miler | Jan 4, 2023 6:56:03 PM


We don’t have to make criminals miserable but we don’t need to make them particularly comfortable either.

Posted by: TarlsQtr | Jan 4, 2023 9:14:14 PM

Incapacitation works. For a particularly grim anecdote about what happens when dangerous criminals are treated nicely comes from the brutalization of Dr. Petit and the murder of his family.

Posted by: federalist | Jan 5, 2023 10:37:11 AM

Anecdotes, such as Dr. Petit and his family are useless here and demagoguery.

Incapacitation does work, probably the only one of the "four pillars" of sentencing that does. But if you follow incapacitation to its logical conclusion, then only effective life sentences are appropriate for any serious crime.

The fact of the matter is that most prisoners are released. The question is how broken are they when they are released. We've mostly ignored that inconvenient fact for most of our history.

Posted by: Fat Bastard | Jan 25, 2023 12:04:45 AM

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