Tag: Tennessee Supreme Court

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Kelsey’s Law License Suspended by Tennessee Supreme Court

State Senator Brian Kelsey (Credit: Jackson Baker)

Former state Senator Brian Kelsey’s law license was suspended Thursday by the Tennessee Supreme Court, but more discipline could follow.

The court’s Board of Professional Responsibility oversees and disciplines attorneys in the state for unethical behaviors. On Thursday, the court suspended Kelsey from practicing law in Tennessee after he pled guilty to two felonies related to campaign finance laws last month.    

Kelsey was indicted on the charges by a grand jury in October 2021. He pled guilty last month to violating campaign finance laws and conspiring to defraud the Federal Election Commission (FEC) as part of a scheme to benefit his failed 2016 campaign for U.S. Congress, according to the U.S. Department of Justice. 

For each of these charges, Kelsey faces five years in prison. He is scheduled to be to be sentenced in June 2023. 

As for his law license, the “matter has been referred to the [Tennessee Supreme Court’s] board to institute formal proceedings to determine the extent of the final discipline to be imposed upon Mr. Kelsey as a result of his plea of guilty to conduct constituting a serious crime …”

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Landmark TN Supreme Court Decision Rules Mandatory Life Sentences for Juveniles Unconstitutional

Credit: State of Tennessee

by Jamie Satterfield, Tennessee Lookout

In a landmark decision, a majority panel of the Tennessee Supreme Court on Friday struck down as unconstitutional mandatory life sentences for juveniles.

“In fulfilling our duty to decide constitutional issues, we hold that an automatic life sentence when imposed on a juvenile homicide offender with no consideration of the juvenile’s age or other circumstances violates the prohibition against cruel and unusual punishment under the 8th Amendment to the United States Constitution,” the state’s high court ruled in a decision made public Friday.

Justice Sharon Lee, who this week announced she would be retiring next year, authored the groundbreaking decision and was joined in the majority opinion by Special Justice William C. Koch Jr. and Justice Holly Kirby. Justices Jeffrey Bivins and Roger Page dissented.

The ruling comes in the case of Tyshon Booker, who was 16-years-old when he fatally shot G’Metrick Caldwell, 26, inside a car on Linden Avenue in Knoxville in November 2015. Knox County Assistant Public Defender Jonathan Harwell successfully convinced the high court to strike down the mandatory life sentence imposed against Booker, who was tried as an adult.

Tennessee law requires imposition of a life sentence as punishment for all offenders, including juveniles, convicted of either first-degree murder or felony murder.

In fulfilling our duty to decide constitutional issues, we hold that an automatic life sentence when imposed on a juvenile homicide offender with no consideration of the juvenile’s age or other circumstances violates the prohibition against cruel and unusual punishment under the 8th Amendment to the United States Constitution

– Tennessee Supreme Court opinion striking mandatory life sentences for juveniles convicted of murder

But the state’s Supreme Court held that such a mandatory sentence for juvenile offenders “does not square with the United States Supreme Court’s interpretation of the 8th Amendment.”

“When sentencing a juvenile homicide offender, a court must have discretion to impose a lesser sentence after considering the juvenile’s age and other circumstances,” Lee wrote in the opinion. “Here (in Booker’s case), the court had no sentencing discretion.”

The high court is not vacating Booker’s life sentence, however, and instead says he should be considered for parole once he has served at least 25 years. He has been behind bars since the 2015 fatal shooting, so he should become eligible for a parole hearing in 2040.

The opinion will impact other juveniles currently in prison under mandatory life sentences. In each of those cases, the opinion stated, the juvenile offenders should now receive individualized parole hearings after serving a minimum of 25 years.

“In remedying this constitutional violation, we exercise judicial restraint,” the high court opinion stated. “We need not create a new sentencing scheme or resentence Mr. Booker … Rather, we follow the policy embodied in the federal Constitution … and grant Mr. Booker an individualized parole hearing when his age and other circumstances will be properly considered.”

But the ruling means that no other juveniles convicted as adults in Tennessee of first-degree murder or felony murder will automatically receive life sentences — as remains the case for adults convicted of those crimes in the state. Instead, judges will have discretion to impose lesser sentences for juveniles as a result of Friday’s decision.

Justice Lee: Court must do its duty

Booker was inside a car with Cantrell and another juvenile, Bradley Robinson, when a fight broke out between Cantrell and Robinson. Booker testified at his trial in Knox County Criminal Court that he saw Cantrell reaching down for something in the front floorboard and heard Robinson yell, “He got a gun, bro.”

“Mr. Booker stated that when he saw (Cantrell) holding a gun and starting to turn toward him in the back seat, Mr. Booker shot (Cantrell) until he stopped moving,” the high court opinion stated.

Booker was convicted of felony murder in the shooting and sentenced to an automatic life sentence under Tennessee law. Harwell argued before the Tennessee Supreme Court that juveniles, by their very youth, are fundamentally different than adult offenders and should be given individualized sentencing hearings before their sentences are determined.

In the high court’s decision, the justices noted that the U.S. Supreme Court has already ruled that juveniles should not face the death penalty and that mandatory sentences of life without parole were unconstitutional. Because of those rulings, most states have abandoned mandatory sentencing for juvenile homicide offenders.

“Compared to the other 49 states, Tennessee is a clear outlier in its sentencing of juvenile homicide offenders,” Lee wrote in Friday’s decision. “So much so that Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country. No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states.”

The Tennessee Legislature has refused to alter the law imposing mandatory life sentences with the possibility of parole to exclude juveniles. Bivins and Page argued in their dissent that the majority panel was trying to usurp the role of the Legislature with Friday’s decision. But the majority panel disagreed.

“The dissent claims, without any basis, that by upholding the protections of our United States Constitution, we are making policy,” Lee wrote. “But when the court does its duty and rules on the constitutionality of a statute, it makes no policy of its own. The court simply implements the policy embodied in the Constitution itself.

“Without question, the General Assembly determines policy and enacts law,” the justice continued. “This court’s duty is to apply the law and, when necessary, decide whether a law is constitutional. By interpreting state and federal constitutions with reasoned opinions, courts are carrying out the quintessential judicial function to say what the law is. Because a party may disagree with the court’s conclusion about the constitutionality of a statute does not mean that the judiciary has usurped the legislative prerogative.

“The dissent would have us wait until the United States Supreme Court rules on this precise issue,” Lee wrote. “But we will not shirk our duty and ignore an injustice. Our decision today directly affects Mr. Booker and over 100 other juvenile homicide offenders who are or will be incarcerated in Tennessee prisons under an unconstitutional sentencing scheme.”

 

Booker Decision by Anita Wadhwani on Scribd

Tennessee Lookout is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com. Follow Tennessee Lookout on Facebook and Twitter.

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State High Court To Hear Memphis Murder Appeal

Credit: Tennessee Supreme Court

The Tennessee Supreme Court will hear arguments from a Memphis man convicted of murder who believes he deserves a new trial because his original trial lawyers were ineffective. 

In a rare move, the state Supreme Court granted an appeal from Tommie Phillips last week. The man was convicted of murder, rape, kidnapping, burglary, and sexual battery in a case tied to one event in December 2008. 

Phillips has appealed his 2011 conviction from the Shelby County Criminal Court several times. The state Supreme Court denied an appeal from Phillips in 2014. Most recently, his appeal was denied by the state Court of Criminal Appeals in February. 

Phillips has argued his public defenders failed to adequately present his case in court with a litany of complaints, noting generally that his defense team had no trial strategy. His central complaint, however, is that his lawyers failed to suppress a statement he made to police. 

Phillips believes allowing the statement in court helped seal his conviction. The appeals court ruling in February disagreed. Even if the statement had been thrown out, “he still cannot show that the result of his trial would have been different given the overwhelming proof of his guilt.”      

In approving Phillips’ appeal, Tennessee Supreme Court justices said they are “particularly interested” hearing his arguments about the case, especially as to whether the statement should have been suppressed. The case was set for oral arguments, though no schedule was given.

The 2008 crime

In 2008, Phillips arrived at a home looking for an acquaintance who, Phillips said, owed him money. The acquaintance’s mother shared the home with her 85-year-old mother. 

Court records say Phillips forced the woman to take the elderly woman to her bedroom and bind her feet and hands with shoelaces. He then forced the woman to disrobe and get into a bathtub. He bound her feet and hands, sexually assaulted her, sliced at her throat and stabbed her in the chest. 

“[Phillips] stepped out of the bathtub, smiled at her, and went back into her bedroom,” court records say. “He returned with her bathrobe and said, ‘Pack it down, you’ll live.’ 

“He told her that if her son arrived in fifteen minutes, he could call the paramedics to save her. He said, ‘I do this all the time,’ then smiled and left the bathroom.”    

Phillips’ acquaintance arrived home and the men struggled. The mother broke free from her bindings, attempted to call for help, and attacked Phillips with a hammer. 

Once he left, they found the 85-year-old grandmother dead in a bathroom. Court records said she was apparently strangled, found with a “blue bandana wrapped tightly around her neck.” In the police car with his mother much later, Phillips told her that the elderly woman ”was having a heart attack and he put a pillow under her head.”

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Politics Politics Beat Blog

Doubt Remains after High Court’s Ruling on Absentee Ballots

Tennessee voters concerned about in-person voting during the COVID-19 pandemic got half a loaf from the state Supreme Court.

Justice Cornelia Clark

Not quite half, actually. In fact, not even close. In its ruling Wednesday on the state’s appeal of a Nashville chancellor’s ruling guaranteeing universal mail-in voting (technically, no-excuse absentee voting) through the run of the pandemic, the Court decided that such a blanket permission would apply only to this week’s election contests, not to those in November.

And, of course, November — when a President is chosen, along with a U.S. Senator and members of the state legislature — is the big enchilada, or the better part of it.

Left unsettled and perilously close to moot was the central issue: To what extent should the looming danger of COVID-19 give any individual voter license to apply for an absentee ballot?

Until the hearing of the appeal before the Supreme Court, the position of state government had been clear: As enunciated both by Governor Bill Lee and Secretary of State Tre Hargett, it was that fear of contracting COVID-19 or of its effects nor even potential vulnerability to the virus were not reasons allowed by Tennessee law for obtaining an absentee ballot.

That was the position taken as well by assistant Attorney General Alex Rieger when plaintiffs — including Memphians from the Up the Vote 901 group and others represented by the ACLU — first sought an injunction in June to permit universal mail-in voting.

Nashville Chancellor Ellen Hobbs Lyle, who heard that case, granted a temporary injunction in favor of the plaintiffs.

Last week, however, when the state Supreme Court heard the state’s appeal, another representative of the AG’s office, Janet Kleinfelter, appeared to argue that underlying medical circumstances indicating potential vulnerability to COVID-19 would be proper grounds for a mail-in ballot, and, perhaps crucially, that only a voter’s attestation to such circumstances would be required.

That arguably left the issue, and any mandate concerning it, in something of a muddle. In any case, Justice Cornelia Clark, writing for a four-Justice majority of the Court, wrote in her opinion, “We hold that injunctive relief is not necessary with respect to such plaintiffs and persons.”

The opinion further left it incumbent upon the state to ensure that “appropriate guidance, consistent with the state’s acknowledged interpretation, is provided to Tennessee registered voters with respect to eligibility of such persons to vote absentee by mail in advance of the November 2020 election.”

This “nothing-to-see-here” ruling is against a background of the state’s having had to be prodded multiple times by Chancellor Lyle to adjust its actions and public announcements to the spirit and letter of her injunction.

Technically, the Supreme Court’s ruling is a vacation of Lyle’s injunction and a remand of the case back to the Chancellor’s court. It leaves the plaintiffs with recourse to seek further action if they choose.

The High Court’s action was somewhat foreshadowed during last week’s hearing in the questioning of attorneys. For example, a point was raised by Justice Clark about the time frame of Chancellor Lyle’s injunction, whether it was meant to expire after August or after November or just when.

That calendar point, which was not resolved in the hearing itself, seems to have been dealt with in the ruling and it may partly explain the reasoning of Justice Clark, from whom, along with Justice Sharon Lee and possibly Justice Roger Page, plaintiffs had hoped for a favorable ruling.

Two other Justices, Holly Kirby and Chief Justice Jeffrey Bivins, were expected to lean toward the state’s arguments, based on their questioning during the hearing as well as their more conservative profiles on the Court.

University of Memphis law professor and former County Commissioner Steve Muroy, an attorney for the Up the Vote 901 group, was philosophical about Wednesday’s ruling: “This is a partial victory. We got 100% absentee choice for August . While we’re disappointed we didn’t get the same for November, and disagree with that part of the decision, we did get choice for all voters with an underlying medical condition or caretakers thereof. That’s likely a substantial majority of voters.”

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State Supreme Court Has Mail-In Ballot Case

The State of Tennessee remains on a losing streak in its appeal of a three-week-old ruling by a Nashville Chancellor granting the right to a mail-in absentee ballot to any eligible Tennessee voter who for any reason is wary of on-site voting this year because of the ongoing COVID-19 virus.

The Tennessee Supreme Court on Wednesday agreed to hear the case on appeal but has denied the state’s request for a stay of Chancery Court Judge Ellen Hobbs Lyle’s June 5th order, a request filed by Secretary of State Tre Hargett and state Election Coordinator Mark Goins.

The state Supreme Court granted a request by the defendants by bypass an intermediate appeals court in order to expedite a decision on the Lyle ruling, which directs the defendants to expand eligibility for mail-in voting, to send such mail-in ballots to voters requesting them, and to ensure that all election officials throughout the state also comply with such requests.

In her ruling, Chancellor Lyle had discounted the state’s objections — ranging from concerns about costs to concerns about fraud and excessive demands upon the state’s capability. She noted that the Tennessee constitution is “more explicit than the federal Constitution” in guaranteeing the right to vote and that the state’s “restrictive interpretation and application of Tennessee’s voting by mail law” constituted “an unreasonable burden on the fundamental right to vote.”

Lyle did not require the state to automatically provide the state’s entire voting population with mail-in ballots, merely those voters who might apply for them. Voters could still choose to vote in person if they wanted.

Subsequent to her original ruling, she pronounced as invalid and confusing the state’s rewording of the official voter application forms for mail-in ballots and insisted on language that was clear and unambiguous in its listing of concerns about COVID-19 as an acceptable condition for requesting an absentee ballot.

In another follow-up ruling issued on Thursday, Judge Lyle admonished the state to ensure that all county election commission websites or other county posts included clear advisories of the COVID-19 reason, requiring Goins to provide proposed language for the court to order by 3:30 p.m. Thursday. This was in response to reports that dozens of counties across the state had failed to fully comply with the court’s order. Lyle said “an omission of COVID-19 in such Posted Information where the other reasons and excuses are addressed does not conform to the Absentee Ballot Application, and is inaccurate, incomplete and potentially misleading.”

Meanwhile, the state Supreme Court has asked for a brief in the case from the state by July 2nd. from the plaintiffs by July 9th, and any response to that from the State by July 13th. Oral argument via Zoom will be scheduled for some time thereafter.

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Supreme Court Orders Judges to Plan for Jail Reductions

A new order from the Tennessee Supreme Court directs judges to submit a plan to reduce jail populations as a way to stop the spread of coronavirus.

The new order came Wednesday as the court extended its March 20th order mandating all courts stay open but suspend most in-person proceedings through April 30th. The previous order asked judges to work with others in the judicial system to make inmate reduction when possible. The new mandate orders them to make a  plan.

“Reduction in local jail populations is a critical component in controlling the spread of COVID-19,” Chief Justice Jeff Bivins said. “There are low-risk, non-violent offenders who can safely be released and supervised by other means to reduce local jail populations. Judges, law enforcement, and attorneys must work together to identify and create an action plan to address this issue.”

The order does come with a list of exceptions. Some cases will proceed, for example, to protect constitutional rights of criminal defendants. Proceedings will also continue in matters related to child safety, emergency mental health orders, those directly related to coronavirus, and more.

The order applies to state and local Tennessee courts, including appellate, trial, general sessions, juvenile, and municipal courts. The court strongly encourages court proceedings to continue by phone, video, teleconferencing, email, and other means that do not involve human contact.

“Judges from around the state and the technology team at the Administrative Office of the Courts hit the ground running March 13th when it came to finding and utilizing technology in courtrooms to keep court proceedings moving,” Bivins said. “Through the AOC court security grants, approximately 30 video arraignment systems have been installed over the past two years and judges are also using WebEx, Zoom, Skype, and other tools to hold hearings and meetings.

Tennessee judges have proven to be innovative problem-solvers when needed. The court greatly appreciates the flexibility and accommodations shown by all in the legal system, including court clerks, attorneys, court staff, and law enforcement personnel.”

The order came after criminal justice reform advocates urged the court to release many incarcerated in Tennessee’s jails and prisons.

Read the court’s order here:
[pdf-1]

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Reformers Urge Release of Many from Jail, Prisons to Stop Coronavirus Spread

Nearly 40 groups — from Redneck Revolt to Black Mama’s Bail Out Knoxville — have asked the Tennessee Supreme Court to release some of those in jails and prisons across the state to stop the spread of coronavirus.

An emergency petition was filed to the court Wednesday. In it, the groups asked the court to supplement its earlier order, which suspended in-person court proceedings. The groups want new rules that would allow many now incarcerated to go free with some restrictions to stop the spread of the disease in Tennessee lock-ups.

Tennessee courts have ultimate control on who is held in these facilities, they said. They also have ultimate control of those people being held.

“In this unprecedented moment in history, those same courts also have a moral obligation to protect the health, safety, and well-being of people detained, because they are unable to protect themselves from exposure to the coronavirus due to the inherent conditions inside jails, detention centers, and prisons,” reads the petition. “That obligation also extends to protecting the health, safety, and well-being of everyone who enters or works within those facilities, as well as the public at-large.”
Google Maps

Riverbend Maximum Security Prison in Nashville is home to Tennessee’s death row.

The document was formally filed by C. Dawn Deaner, of Nashville’s Choosing Justice Initiative. But it was co-signed by criminal justice reform advocates from across the state and country. Groups from Memphis who signed on included Healthy and Free Tennessee, Sister Reach, Just City, and several attorneys here working with the Tennessee Association of Criminal Defense Lawyers.

Many incarcerated in Tennessee have those underlying health conditions — asthma, diabetes, and hypertension —that the Centers for Disease Control & Prevention has warned come with elevated risks for contracting coronavirus, according to the petition.

While others around the country shelter in place or practice social distancing, that’s not an option for those in jails or prison. The petition said such spaces become “breeding grounds” and “ticking time bombs” during pandemics. The group likened these places to nursing homes or cruise ships where coronavirus “can easily gain a foothold and spread rapidly with devastating consequences.”

For all of this, the groups have asked the court to expand its operations plan to “provide municipal, juvenile, general sessions, trial, and appellate courts of this state, as well as court clerks, sheriffs/jailers, and the Tennessee Department of Correction (TDOC) with specific and immediate directives necessary to reduce the public health threat of COVID-19 for those in contact with Tennessee’s correctional systems and the greater community.”
Shelby County Sheriff’s Office

To do it, the groups want the immediate release of certain people, unless the state can demonstrate that the person’s release would endanger the safety of those in the community and nothing but confinement will mitigate that danger.

They want to see the release of:

• all persons serving a misdemeanor sentence;

• all persons at an elevated risk of contracting COVID-19 and/or experiencing more serious symptoms thereof, either because of age or because of underlying health conditions

• all pregnant people

• all persons confined pretrial who are eligible for release on bail, but remain in jail because they cannot afford to pay a money bail condition or court-ordered pretrial monitoring fees

• all children detained on delinquency charges

• all persons confined on pending probation or parole violation charges

The petition wants criminal citations or a court summons issued instead of arrests for all qualifying people. They want all of those who do not qualify for a citation or summons to be released on their own recognizance, on an unsecured money bail, or under the the supervision of a pretrial services program (and at no cost for those who can’t pay).

The groups want the immediate release from juvenile centers of all children alleged to be delinquent. They want to continue all sentencing hearings for those not in custody if that hearing could result in jail time. They also want to suspend all transfers of children from local jails to the custody of the Tennessee Department of Corrections (TDOC).

They also want to see the release of felons:

• over the age of 50

• who have been granted parole on the condition they complete a program before release

• who have reached their parole eligibility date

• who have less than three years remaining on their sentence

• who have been in custody for 25 years or more

Brushy Mountain State Penitentiary

“Science shows that, within jails and prisons, isolation, segregation, and lockdown are ineffective against COVID-19, and regardless, jails and prisons rarely have the physical space to accomplish these efforts for the existing population,” reads the petition. “COVID-19 can survive in the air, so separation in a facility where there is still other movement of people, and occasional interaction, will not contain it.”

Also, surfaces inside jails and prisons are still touched — cells, bathrooms, kitchens, and many surfaces during transport.

The petition noted that a similar measure was taken earlier this week as the New Jersey Supreme Court ordered lower courts to compute or suspend sentences by people held in county jails.

Kentucky Supreme Court Chief Justice John Minton Jr. urged officials there last week to ”to clear out all of the jail inmates you safely can, ahead of the virus, if you aren’t doing so,” the petition said. Similar measures have been done in Cleveland, Ohio, and Washington, D.C.

“If immediate action is not taken to reduce the population of jails, juvenile detention centers, and prisons in Tennessee, persons detained there will remain at grave and unacceptable risk of contracting COVID-19, which is a serious and potentially life-threatening illness for which no vaccine or cure exists,” reads the petition.

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State Sets Execution Dates for Two More Inmates

CREDIT: Adobe Stock

Adobe Stock


Less than a week after the execution of Nicholas Sutton, the Tennessee Supreme Court has issued execution dates for two more inmates later this year, prompting one anti-death penalty group to refer to Tennessee as the “outlier” in its use of executions.

The court issued execution dates for Bryon Black and Pervis Payne Monday.

Black, a Davidson County resident, was convicted of the 1988 murders of his girlfriend Angela Clay and her two daughters. Payne, a Shelby County resident, was convicted of the 1987 murders of Charisse Christopher and her 2-year-old daughter.

Prior to the court’s order, Black attempted to have his death sentence commuted, citing his intellectual disability. Black argued that his execution would violate both the U.S. and Tennessee Constitutions due to his mental illness.

According to court documents, Black also asserted that the death penalty is racist and that Tennessee “is out of step with the evolving standards of decency.”

[pullquote-3]

The court denied his request, as there were no “extenuating circumstances” that warranted the commutation of his sentence.

However, the court has granted Black the opportunity for a competency hearing in July, which will determine if he is competent enough to be executed. If Black’s petition is denied, his death sentence will be carried out on September 24th.

Payne also asked the court to commute his sentence, citing reasons similar to Black. In addition, Payne asserted that he has a “strong case of actual innocence.” But the court also denied his request. Payne is set to be executed on December 3rd.

Last month, the Tennessee Supreme Court also set execution dates for two more inmates — Oscar Franklin Smith, who was convicted for a triple murder in 1989, and Harold Wayne Nichols, who was convicted for a 1988 rape and murder.

‘Outlier’

Tennessee is one of 30 states where capital punishment is still legal. Twenty states and Washington D.C. have abolished the death penalty.

Between 2009 and 2018, no executions were carried out in the state. Since August 2018, seven inmates have been executed in Tennessee.


In that 18-month period, Tennessee executed the second-highest number of inmates behind Texas, which carried out 24 death sentences, based on data from the Death Penalty Information Center.

In the past decade — despite an eight-year period of no executions — Tennessee has put the 11th highest number of inmates to death.

Texas tops that list, having carried out 122 death sentences since 2020. Behind Texas is Florida with 31 executions, Georgia with 30, and Ohio with 23.

Death Penalty Information Center

States with capital punishment

Stacy Rector, executive director of Tennesseans for Alternatives to Death Penalty, believes Tennessee has become “an outlier in its use of executions.”

Rector notes that the death penalty and support for the death penalty are at “historic 40-year lows.”

[pullquote-1]

“In the most recent Gallup Poll, 60 percent of Americans now say that they prefer the sentence of life without parole over the death penalty, and Tennessee juries have delivered only two new death sentences since 2013, showing that Tennesseans have moved away from the practice,” Rector said. “Increasingly, evidence demonstrates that our death penalty system is not applied fairly and accurately.”

Rector also cites a recent study published by the Tennessee Journal of Law and Policy that concluded the state’s capital punishment system is a “cruel lottery” that is “riddled with arbitrariness.” The study examined every first-degree murder case in the state since 1977 to determine whether or not the arbitrariness that led the U.S. Supreme Court in 1972 to declare the country’s death penalty laws unconstitutional is still a factor in Tennessee.

Specifically, the study concluded that in the more than 2,500 cases reviewed, the facts of the crime could not be used to predict whether or not the death penalty would be imposed. Instead, the study found that arbitrary factors, such as the race of the defendant, the quality of defense, and the views of the prosecutors and judges were the best indicators of whether or not the defendant would be sentenced to death.

Rector agrees, saying that mental illness, intellectual disability, racial bias, and ineffective counsel all play a role in the cases of inmates who are currently scheduled for execution in Tennessee.

Death Penalty Information Center

Methods

Tennessee is one of nine states where execution by electric chair is legal. However, no state other than Tennessee has used this method since 2013. Per state law, Tennessee inmates sentenced to death prior to 1999 are allowed to choose between lethal injection or electrocution. Of Tennessee’s seven executions since 2018, five, including the most recent execution of Sutton, were done by electrocution.

Many states, most recently Georgia and Nebraska, have abolished the use of the electric chair, ruling that it is “cruel and unusual punishment.”

There is ongoing litigation surrounding Tennessee’s lethal injection protocol, which some have called “tortuous.”

Most recently, Smith, who is scheduled to be executed this summer, along with four other death row inmates, filed separate federal lawsuits presenting new evidence challenging the state’s three-drug lethal injection cocktail, which was adopted in early 2018.

The three drugs include midazolam, a sedative; vecuronium bromide, a paralytic; and potassium chloride, which stops the heart.

[pullquote-2]

Smith’s lawsuit alleges that midazolam is unsuitable for executions and that there have been problems with the preparation of potassium chloride that the state was aware of but failed to disclose to the inmates or the court.

The suit includes an August 2019 email exchange between prison officials that indicated the potassium chloride was not mixing correctly.

The incorrect mixing of the three drugs can lead to a painful injection, described as “injecting rocks into the veins,” the suit cites. As a result, the drug meant to stop the heart might not circulate properly, and the inmate would die from suffocation.

In 2018, in response to another lawsuit brought forth by 33 death row inmates, the Tennessee Supreme Court ruled that there was no evidence that the protocol constitutes cruel and unusual punishment and that the inmates who brought the suit failed to prove the drug cocktail creates a “demonstrated risk of severe pain.”

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Editorial Opinion

TN Supreme Court Surrenders on Attorney General

It was just a little over a month ago that Tennesseans did themselves proud by decisively rejecting a campaign, led by Republican Lieutenant Governor Ron Ramsey, to purge three state Supreme Court justices — Gary Wade, Connie Clark, and Sharon Lee — in a retention election.

Although Ramsey did his best to malign the three for this or that alleged defect, the real offense of these distinguished jurists was that they had been appointed to office by a former Democratic governor, Phil Bredesen. The state’s voters obviously discerned this purely partisan motive in the purge campaign and voted by a 2-to-1 margin to retain the justices, who won’t be vulnerable for another eight years. So far, so good.

Ramsey, in his campaign against the three justices, had charged, among other things, that — with state Attorney General Robert Cooper coming up for reappointment or replacement in the wake of the election — they would be unlikely to appoint a state attorney general who would enlist in the national GOP’s ongoing legal vendetta against the Affordable Care Act (aka “Obamacare”), as Cooper had declined to do. The justices, quite properly, dismissed the charge as irrelevant to their oath of office, which requires them to avoid prejudgments and to remain free of political motives (indeed, the fact that supporters, as well as foes, kept referring to them as “Democrats” was an improper stretch).

There was a political sequel of sorts to the retention election. The three newly retained Bredesen appointees, along with two others who had been appointed by GOP Governor Bill Haslam, now had the duty of deciding whether to reappoint Cooper or name a replacement. Justice Lee, who in the wake of the retention election was named chief justice by her colleagues, made a public statement offering reassurance that politics would not play a role in the appointment decision. Coincidentally or not, though, the eventual choice of the justices was Herbert Slatery, who served Haslam in the same role that Cooper had served Bredesen, that of chief legal adviser to the governor.

The appointment stuck in the craw of state Representative Craig Fitzhugh (R-Ripley), the Democrats’ leader in the state House, who praised Cooper for his achievements as AG and professed disappointment “that our Supreme Court has capitulated to Lieutenant Governor Ron Ramsey and the very special interest groups that tried to replace our justices just one short month ago.” Continued Fitzhugh: “While the people have shown they can be trusted to preserve the integrity of the courts, the Supreme Court justices have shown they are too susceptible to political pressure.”

Was Fitzhugh too harsh? Well, there was a reaction from the Republican Attorneys General Association (RAGA), a Washington-based lobby that describes itself as “the only national organization whose mission is electing Republicans to the Office of Attorney General.” Said RAGA in a press release: “We are very pleased by the appointment of Mr. Slatery,” adding, after some boilerplate praise for Slatery’s legal prowess: “The appointment of Herbert Slatery brings the total number of Republican AGs across the country to 25.”  

We hope we — and Fitzhugh — are wrong, but it’s beginning to look like the defenders of nonpartisan justice in Tennessee, having won a battle only last month, have run up the white flag of surrender this month.

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Editorial Opinion

Tennessee Should Keep a Nonpartisan Supreme Court

Mickey Barker is a former chief justice of the Tennessee Supreme Court whose political affiliation before his appointment in 1998 by then GOP Governor Don Sundquist was unmistakably Republican. A Chattanooga native, Barker consistently received high marks in judicial evaluations and was twice approved overwhelmingly for retention by the state’s voters under the current “Tennessee Plan.”

He retired in 2006 but has kept a watchful eye on the state’s judicial ferment.

And so it is telling, given his political background and his record of distinguished service on the bench, that Barker finds “frightening” the current efforts by Lieutenant Governor Ron Ramsey and other legislative Republicans to politicize Tennessee’s Supreme Court and turn it into what Barker calls a “partisan branch of government.”

Ramsey and crew, abetted by right-wing donors from elsewhere, including the billionaire Koch brothers of Wichita, Kansas, have organized a well-funded campaign to get Tennessee voters to reject three justices in this year’s statewide retention elections. The Justices — Cornelia Clark, Sharon Lee, and current Chief Justice Gary Wade — happen to have been appointed by former Governor Phil Bredesen, who, though well-known to be politically conservative, was a Democrat.

That’s enough in Ramsey’s eyes to damn the three justices up for retention, though two of them — Wade and Lee — hail from the same highly Republican corner of East Tennessee as Ramsey himself and, before their appointment, had numerous GOP associations there. Ramsey has been quoted as saying he “refuses” to believe that there aren’t capable Republican lawyers who could serve as well as Democrats on the state’s high court. As if that were the point.

Governor Bill Haslam has appointed two Republicans to fill vacancies in recent years, but the governor, who would have the duty to appoint replacements for Clark, Lee, and Wade in the case of their rejection, has made it clear he wants no part of the current anti-retention campaign.

Haslam feels constrained by his position from commenting, but former Chief Justice Barker is not so hindered. Here’s what he recently told Andy Sher of his hometown’s Chattanooga Times-Free Press: “We have three branches of government. Each is to be co-equal and each is to be separate. Two of those branches are political branches — the legislative and the executive. And the judicial branch is nonpolitical. … I am very disappointed that our present legislative branch is apparently seeking to dominate all three branches. We’ve never had that in my lifetime in Tennessee, and it would be a real shame to see that occur.”

The three beleaguered justices have been forced into a barnstorming tour of sorts to raise enough support and money to counter the well-funded purge efforts of Ramsey and his out-of-state allies. To our gratification, Clark, Lee, and Wade were welcomed by a generous turnout of area lawyers at the Racquet Club last Thursday and by the formal endorsement of Mayor A C Wharton on Friday morning.

On August 7th, they deserve the endorsement of Shelby County voters, too — regardless of party. Interpreting the law is — or should be — non-political.