By: Brian Haas
Tennessee's state prisons are full. Its county jails struggle to find open beds for those prisoners.
The governor has had to pump in tens of millions in extra money to fill the gap. Lawsuits already are alleging civil rights violations of prisoners because of overcrowding.
It's beginning to look a lot like the 1980s.
Back then, Tennessee was forced to overhaul its entire criminal justice system in the wake of civil rights lawsuits and federal intervention over abysmal conditions in prisons.
And while Tennessee isn't quite there yet, it has nearly 5,000 felons stuck in county jails because there aren't enough prison beds. Some of those jails are being decertified for overcrowding, leaving them vulnerable to lawsuits.
The Tennessee Department of Correction ran $20 million over budget last year, and Gov. Bill Haslam has kicked in an additional $48 million in the upcoming year to pay for the large number of state inmates left in county jails.
All the while, state lawmakers continue to file bills designed to put even more people in prison for longer and longer stays.
That disconnect could spell trouble.
Every 20 or 30 years, the state criminal justice system goes through a major change and needs a "fix-it," said David Raybin, a Nashville criminal defense attorney who helped reform Tennessee's criminal justice system in the 1980s.
"What's happening now, you are having the beginnings of a necessity for a revision again," he said. "The patient is now breaking out in a serious rash. You now need medical attention."
And county taxpayers are paying for Band-Aids, spending millions on new jails to avoid decertification and civil rights lawsuits.
"When you start pouring water into a glass and it starts spilling down the sides, you've either got to get a bigger glass or stop putting so much water into it," said Terry Ashe, executive director of the Tennessee Sheriffs' Association, whose members run county jails.
"Are we at a point where there needs to be serious conversation about how we address this in the remainder of this decade? The answer to that is yes."
An analysis of sentencing statistics maintained by the Tennessee Administrative Office of the Courts shows the state's criminal justice system is a mishmash of dueling priorities.
On the one hand, criminals sent to prison are staying there longer today than they were in 2003. On the other, fewer criminals are being sent to prison, with more and more being sentenced to probation instead.
Still, the state's prison population since 2000 has grown by almost 30 percent to nearly 30,000. The state's overall population grew by about 13 percent during that same time.
The last major overhaul of Tennessee's criminal justice system came from the Criminal Sentencing Reform Act of 1989. After years of overcrowding and lawsuits, the state, based on Tennessee Sentencing Commission recommendations, changed the way criminals would be sentenced.
It made punishments more uniform and, in many cases, allowed felons to get out of prison after serving just a fraction of their time there.
"There were a lot of people that were unhappy," said Davidson County District Attorney General Torry Johnson, who, along with Raybin, was on the commission. "But we were confronted with an unmanageable jail overcrowding or prison overcrowding system."
The commission dissolved in 1995 and, since then, the penalties for crimes have steadily crept upward. Parole has been eliminated for many of the most violent crimes.
There are now five categories of crimes that carry with them mandatory minimum sentences: using a firearm during a felony, possession or selling of drugs in a school zone, prostitution in a school zone, DUIs and repeat domestic abusers.
Already this year, bills have been filed that would increase penalties on assaults, sex trafficking, giving switchblades or guns to minors, filing fraudulent deeds and bigamy.
State Rep. Barrett Rich, R-Somerville, has pushed to have parole eliminated completely to force felons to serve at least 85 percent of their prison sentences. His bill would knock off 15 percent for good behavior.
He acknowledged that such a change could cost the state hundreds of millions of dollars but said it would be worth it.
"We have a parole system that has been extra liberal in letting people out of prison," he said.
When asked how the state would pay for it, he responded, "Governing is prioritizing. We'd have to prioritize our spending to ensure that the needs were met."
House Speaker Beth Harwell said she doesn't think Tennessee is in a crisis yet but that it's smart to begin planning for problems ahead.
"I will say that a Republican-controlled legislature firmly believes it's our responsibility to be tough on crime," said the Nashville Republican. "I think we are very conscious in the legislature that every bill that would increase a penalty in crime has a fiscal note attached to it."
Fiscal notes, attached to all proposed legislation in an attempt to predict the cost of implementation, are another product of the 1989 reforms.
We cannot 'build our way out'
In the interim, the Tennessee Department of Correction is hoping to come up with a better model for predicting its future prison populations - past models vastly underestimated future prison populations - and to persuade judges to impose alternative sentences such as drug court and community corrections to keep felons out of prison.
Correction Commissioner Derrick Schofield said that in the end, it's a matter of money.
"We know incarceration is the most expensive sentencing method and Tennessee, like most states, realizes we cannot continue to build our way out of the population growth in prisons and jails," Schofield said in an email.
"As we become smarter on crime, we have to ensure that we continue to incarcerate people who pose the greatest threat to us. On the other hand, we need to look at alternatives and diversionary programs for the non-violent offenders who would be better suited for programs like drug courts, day reporting centers or probation detention centers."
Johnson, the Davidson County DA, said the 1989 reforms have served their purpose and put Tennessee ahead of other states that have struggled with growing prison populations.
"I also think that TDOC and the state have generally kept up in trying to explore other ways of managing the population," he said. "That's not to say there's not a time to re-look at things and re-evaluate."
But Raybin has maintained for years that it was a mistake to allow the Tennessee Sentencing Commission to dissolve. He said the only way forward is to create a new one to tackle the state's growing prison problem, before it gets out of control.
"We jumped off a cliff in 1995, blindfolded. That's what happened. We took away our radar with the Sentencing Commission," Raybin said.
"We are in the same trajectory now as we were back then. The signs are there. The overcrowding, it fills up in the jails and backs up in the penitentiary. We in fact have a problem."
Contact Brian Haas at 615-726-8968 or firstname.lastname@example.org.