Bredesen Moves To Preserve Sentencing Laws

Task Force To Make Recommendations To Governor

Thursday, July 22, 2004

NASHVILLE – By Executive Order, Governor Phil Bredesen today named a panel of criminal justice officials charged with making recommendations to preserve the use of enhancement factors in Tennessee’s criminal sentencing laws, in light of a recent U.S. Supreme Court ruling.

The Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing will determine if a special session of the General Assembly is necessary to protect the Tennessee Criminal Sentencing Reform Act called into question by the ruling and will determine what legislation, if any, might be necessary, officials said.

In Blakely v. Washington, the nation’s highest court struck down part of the sentencing structure used by the State of Washington, a system that – like Tennessee’s – is based on presumptive sentences and the determination of enhancement and mitigating factors by judges.

“We must preserve the ability of the judicial branch to make sentencing determinations based on the facts of each case and the circumstances of each person convicted,” Bredesen said. “Our state’s sentencing laws, which allow sentences to be enhanced based on certain aggravating factors, have served us well, and we must do all we can to protect the Criminal Sentencing Act so that the punishment fits not just the crime, but the criminal as well.”

The 13-member Task Force on the Use of Enhancement Factors in Criminal Sentencing will consist of the Attorney General and Reporter or his designee, the Commissioner of the Department of Correction, the Chairman of the Board of Probation and Parole, as well as one member from each House of the Legislature, to be appointed by the Speakers. Eight additional members will include at least one each of the following groups: appellate judges, criminal trial judges, general sessions court judges, district attorneys, public defenders, criminal defense lawyers and victims of crimes. The Governor shall appoint a Chair from among the members, who will appoint five (5) ex-officio, non-voting, members to serve in an advisory capacity.

The Task Force will report to the Governor no later than August 27 on whether a special session of the Legislature is necessary to revise the state’s sentencing laws. The group is also charged with recommending legislation even if it’s determined a special session is not necessary. In that case, the panel will have until November 15 to recommend legislation for next year’s session of the Legislature.

Members of the Task Force will not be compensated for their services but may be reimbursed for travel expenses as allowed by the state. Legislative members will receive their customary per-diem reimbursement in the same manner as they are paid for attending legislative meetings.

###

Governor’s Task Force on the Use of
Enhancement Factors in criminal sentencing

Barbara Haynes, Circuit Court Judge, Twentieth Judicial District, Part 3 – Chair

Speaker of the House or his designee

Speaker of the Senate or his designee

Attorney General and Reporter Paul G. Summers or his designee

Commissioner of Correction Quenton I. White

Chairman of the Board of Probation and Parole Charles Traughber

Victor S. (Torry) Johnson III, District Attorney General, Twentieth Judicial District

Claudia S. Jack, Public Defender, Twenty-Second Judicial District

William B. Acree Jr., Circuit Court Judge, Twenty-Seventh Judicial District

Gary R. Wade, Court of Criminal Appeals Judge, Eastern Section

Loyce Lambert Ryan, General Sessions Court Judge, Division 15, Shelby County

James F. Logan, Jr. (Bradley County)

Joseph N. Barker (Davidson County)
STATE OF TENNESSEE

E X E C U T I V E O R D E R

BY THE GOVERNOR
No. 19


AN ORDER ESTABLISHING THE GOVERNOR’S TASK FORCE

ON THE USE OF ENHANCEMENT FACTORS IN CRIMINAL SENTENCING

WHEREAS, on June 24, 2004, in Blakely v. Washington, the U.S. Supreme Court struck down the sentencing structure used by the State of Washington, which also used a system based on presumptive sentences and the determination of enhancement and mitigating factors by judges; and

WHEREAS, the Supreme Court held that the system used by the State of Washington deprived defendants of their Sixth Amendment constitutional right to jury trial because criminal penalties were enhanced based on factual findings by a judge using a preponderance of the evidence standard instead of factual findings by a jury using the standard of beyond a reasonable doubt; and

WHEREAS, the State of Tennessee adopted its current structure for imposing punishment on felony offenders in the Tennessee Criminal Sentencing Reform Act of 1989 (the “Act”); and

WHEREAS, the sentencing structure contained in the Act is similar to that used in the State of Washington and therefore may be subject to constitutional challenge; and

WHEREAS, the Act’s sentencing structure has served the State well, and appropriate efforts should be made to preserve the Act while making those changes, if any, necessary to conform to the Supreme Court’s ruling; and

WHEREAS, the Governor desires to work with those judges, prosecutors, public defenders, defense attorneys, correction officials and others involved in the criminal justice system to assess the impact of the Blakely decision on Tennessee’s sentencing laws and to develop an appropriate response.

NOW THEREFORE, I, Phil Bredesen, Governor of the State of

Tennessee, by virtue of the power and authority vested in me by the Tennessee

Constitution and law, do hereby order and direct the following:

1. The Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing is hereby established. The Task Force is charged with the responsibility of assessing the impact of the Blakely decision on Tennessee’s sentencing laws and recommending to the Governor an appropriate response to the decision. Specifically, the Governor charges the Task Force with the following responsibilities:

a. To determine whether the impact of the Blakely decision on Tennessee’s sentencing laws is of such breadth and severity that the General Assembly should be called into special session to revise the sentencing laws; and

b. To recommend any appropriate legislation to address the issues raised by the Blakely decision.

The Task Force shall present its conclusions on subparagraph (a) to the Governor on or before August 27, 2004. If the Governor, based on the Task Force’s recommendation, concludes that a special session on this issue is warranted, the Task Force shall present its conclusions on subparagraph (b) to the Governor prior to the convening of the special session. If the Governor, based on the Task Force’s recommendation, concludes that a special session is not warranted, the Task Force shall present its conclusions on subparagraph (b) to the Governor on or before November 15, 2004.

2. The Task Force shall have thirteen (13) members, consisting of the following individuals:

a. One (1) member of the Tennessee Senate to be selected by the Speaker of the Senate;

b. One (1) member of the Tennessee House of Representatives to be selected by the Speaker of the House of Representatives;

c. Attorney General and Reporter or his designee;

d. Commissioner of Correction; and

e. Chairman of the Board of Probation and Parole.

FUTHERMORE, the Governor shall appoint eight (8) additional members to the Task Force, which shall include at least one representative of the following groups involved in the criminal justice system: appellate judges, criminal trial judges, general sessions court judges, district attorneys, public defenders, criminal defense lawyers and victims of crimes. The Governor shall appoint a Chair from among the members. The Chair shall have the authority to appoint up to five (5) ex-officio, non-voting, members to serve in an advisory capacity.

3. The Task Force shall be attached to the Office of the Governor for administrative purposes. In addition, the Administrative Office of the Courts has agreed to provide staff support and any other assistance as requested.

4. All Executive Branch departments, agencies, boards and commissions, and any other divisions of state government, shall fully cooperate with the Task Force in carrying out the mandates of this Executive Order.

5. Non-legislative members shall receive no compensation for their service on the Task Force but may be reimbursed for those expenses allowed by the provisions of the comprehensive travel regulations as promulgated by the Department of Finance and Administration and approved by the Attorney General and Reporter. Members of the General Assembly shall be reimbursed in the same manner as they are paid for attending legislative meetings pursuant to Tennessee Code Annotated, Section 3-1-106.

6. The Task Force will cease to function at the conclusion of the 2005 session of the General Assembly.

IN WITNESS WHEREOF, I have subscribed my signature and caused the Great Seal of the State of Tennessee to be affixed this 22nd day of July, 2004.

_______________________________

GOVERNOR

ATTEST:

_________________________

SECRETARY OF STATE



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