Tag: Criminal Justice

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Trial Here Will Test New Law Stripping Local DAs of Post-Conviction Review

Photo by Tingey Injury Law Firm on Unsplash

Court arguments are set to begin in Memphis on Friday in a case that will test a new state law that stripped local control of post-conviction proceedings in capital cases and granted it to the Tennessee Attorney General.

In capital cases, individuals often seek a review of their convictions, requesting a different judge to assess evidence, determine intellectual disability, competency for execution, and other factors in the hopes of obtaining a reduced sentence. This process is known as collateral review.

Previously, local district attorneys represented the state in these cases. However, a bill passed by the Republican-dominated Tennessee General Assembly and signed by Republican Governor Bill Lee granted this authority to Republican Tennessee Attorney General and Reporter Jonathan Skrmetti.

“The attorney general and reporter will have exclusive control over the state’s defense of the request for collateral review,” stated the bill. “The attorney general and reporter will not be bound by any stipulations, concessions, or agreements made by a district attorney general regarding a request for collateral review. This amendment prohibits a trial court from issuing a final order granting relief in a request for collateral review until the attorney general and reporter files a response to the request.”

The House bill was filed in January, but it felt largely under the radar, primarily focusing on the requirement for law enforcement agencies to inventory sexual assault kits.

However, an amendment removed all of that language and completely re-wrote the bill to give the state AG control in these post-conviction cases. The legislature passed the bill in mid-April, and the governor signed it into law later that month. 

“This sudden move appears to be a response to the choices of voters in both Davidson County and Shelby County, who elected prosecutors to support more restorative and less punitive policies,” read a statement at the time from Tennesseeans for Alternatives to the Death Penalty. 

Larry McKay, who received two death sentences for the murders of two store clerks in Shelby County in 1981, has now requested a court review of previously unexamined evidence in his case. Despite the new law, his attorney seeks disqualification of the “unelected” Tennessee Attorney General from the review.

McKay argues that the new law infringes on the responsibilities of local district attorneys, thereby violating the Tennessee Constitution. Additionally, he contends that the drastic alteration of the legislation violates the state constitution.

In support of McKay’s request, Shelby County District Attorney Steve Mulroy wants to review the new evidence. In a letter this month, Mulroy said, “The newly enacted statute is an unconstitutional effort to divest and diminish the authority granted to Tennessee’s District Attorneys General by the Tennessee Constitution. The new statute violates the voting rights of such voters because it strips material discretion from District Attorneys, who are elected by the qualified voters of the judicial district.”

State attorneys argue that McKay has sought review of his case multiple times in various courts. They challenge the arguments put forth by his attorney, asserting that the new statute does not violate the state constitution. They further note that McKay may not even get the desired outcome if the new evidence is reviewed.

“The General Assembly was entitled to take that statuary power away from the district attorneys and give it to the Attorney General in capital cases,” reads the court document. “They have done just that and their mandate must be followed.”

Memphis Criminal Court Judge Paula Skahan is scheduled to preside over the case and hear arguments on Friday at 10 a.m.

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Sycamore Institute Report Examines the Cost of Criminal Justice

CREDIT: Sycamore Institute TN

Earlier this week the Sycamore Institute, an independent and non-partisan public policy research center for Tennessee, released a report in which they broke down the fees and fines within the criminal justice system of Tennessee.

In their findings, they reported that there were nearly 360 public fees and fines authorized in Tennessee state law, a number that is higher if private acts are factored in. The number of fines is something that Josh Spickler from Just City found concerning.

Chip Chockley

Josh Spickler

“I mean, one of the biggest findings for me from that Sycamore Institute report was how many, which is something we’ve known for a long time has been an issue,” says Spickler. “As an attorney, or as anyone who’s been through that system can tell you, just the sheer number of individual charges is really difficult to quantify. And so, of course, it also depends on what you’re charged with.”

The fee and fine system that exists within the Tennessee criminal justice system is not limited to those found guilty of a crime. Tennessee has one of the most robust fees and fines systems in the country. Due to the sheer number of fees and fines, racking up a significant debt during the criminal justice process is likely.

Sycamore Institute TN

Fines and fees can accrue at all levels of the Criminal Justice process


A daily fee for any jail time associated with a misdemeanor conviction, copays for medical care received while incarcerated, and fees and costs associated with court-ordered treatment for mental health or substance use disorders mean that those convicted can find themselves released with a hefty bill. Even when not charged with standard court charges, document filing fees and even courtroom security costs all end up compiling into sometimes ludicrous amounts.

The fees and fines in the criminal justice system are not levied out of spite. For the taxpayers, as well as state and local governments, fees are supposed to take some of the burdens off their community and to fund public safety initiatives. They are also supposed to be deterrents for crime. But as the Sycamore Institute points out in its report, more often than not, these fines end up causing more harm than good. For those without the ability to pay, fines and fees from previous convictions or court appearances can cause significant difficulty, the group says.

“Court fees are some of the biggest disqualifying factors of the thousands and thousands of people we talk to every year at Just City,” says Spickler. “The biggest disqualifying factor is that ‘Yes, you qualify. Yes, it has been 10 years since you were convicted. Yes, you have finished your sentence, you’ve gotten in no other trouble anywhere in the world. But you still owe $700 in core debt from that 12-year-old case, we can’t get you expunges.’ So the fines and fees are a leverage point there. And then several years ago, [Tennessee] doubled down on it by saying if you owe that criminal court debt, specifically, in Tennessee, we’re going to suspend your license.”

While the Sycamore Institute report does not recommend changes for the fees and fines system — the report is just one of a series that they intended to release in order to help policymakers better understand the human element in the criminal justice system — Spickler thinks income-based fines could be a solution.

“In Memphis, consider that the vast majority of people who come through that system are living in abject poverty. You can’t get blood from a turnip. You can assess all the fines you want, it might as well be a million dollars, ten thousand dollars, one thousand dollars, it’s all the same. Make a ‘finding of ability to pay.’ And if you work three shifts at the warehouse and are cobbling together $12,000 a year, you know, a $50 fine, is significant to you. If you’re assessing it to a director of a nonprofit with 20 years of legal experience like myself, that fine is going to be a whole lot higher. We’re purportedly making findings of income and wealth before we appoint a public defender, so these are not new processes that we would have to implement into our system, but we need to make it automatic. Everybody who comes through that system, we need to assess their ability to pay their way through the criminal justice system and stop pretending that everyone on paper can pay, because most people can’t.”

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Group Hopes to De-Criminalize Poverty


A Tennessee organization is looking for community-sourced solutions to the criminalization of poor Tennesseans.

Free Hearts, an organization led by formerly incarcerated women, seeks to provide support, advocacy, and education to families impacted by incarceration. The group’s ultimate goal is to keep families together or reuniting them.

The organization is asking the public to complete a survey to help generate community-based solutions to decriminalize poverty in Tennessee.

“#ItsNotACrime to be poor, but the state of TN has made it a crime to be poor and working-poor,” the survey introduction reads.

Dawn Harrington, executive director of Free Hearts, said that the survey will help identify new Tennesseans who want to join their efforts to end the criminalization of the poor and “transform our state into one that is just and equitable for all.”

The survey will be open through October 4th. Those who are interested can also send a 1-minute video on the criminalization of poverty to the group.

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Free Hearts, along with the National Council for Incarcerated and Formerly Incarcerated Women and Girls, helped push for a recently-passed state law meant to help parents facing incarceration stay with their families.

The Primary Caretaker Bill, which became law in July, requires that courts factor in someone’s caretaker status when handing down sentences. The idea is for the caretakers to be offered a community-based alternative to incarceration.

Facebook/Free Hearts

Free Hearts with Gov. Bill Lee as he signs the Primary Caretaker Bill


The group has since been talking with Gov. Bill Lee’s office about solutions to the criminalization of poverty. The organization was asked to present solutions to address the issue and other policies related to poverty and criminal justice.

The survey is a step in that direction. Harrington said the group wants to build on the work it’s done for caregivers, by looking for alternatives to parts of the system it says criminalizes poverty, such as bail and pre-trial detention.

“It is our belief that participation is the first win and in order to propose solutions to a problem that affects so many of us, we must get input and buy in from Tennessee across the state on their ideas and organizations that already exists that they believe are effective,” Harrington said.

To incentivize participation, Free Hearts will enter all survey participants or those who create videos in weekly drawings through October 4th for a chance to win a $500 gift card.