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The conservative approach to criminal justice:
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There’s Good Opportunity to Use Alternatives for Nonviolent Offenders.

| January 31, 2018

“There’s good opportunity to use alternatives for nonviolent offenders.” These are the words of Tony Parker, Commissioner of the Tennessee Department of Corrections (TDOC), during his testimony before the House Criminal Justice Committee Commissioner Parker’s statement was corroborated by five years of statistics condensed into a power point slide that broke down the state’s inmate population by violent vs. nonviolent offenders. Since at least 2013, the majority of the prisoners admitted into DOC custody are serving a sentence for a nonviolent offense. In 2017, the percentage of nonviolent offenders increased to account for 55 percent of the total inmate population.

The purpose of Commissioner Parker’s testimony was to highlight the TDOC’s progress in implementing its mandate under the Public Safety Act of 2016. He explained that the Public Safety Act’s graduated sanction model was designed to reduce the number of new admissions to TDOC for probation violations, particularly technical violations, and that it has already generated significant cost savings to the State to the tune of $22 million. He aptly noted that those returning “are becoming taxpayers not tax consumers.”

However, the Public Safety Act also sought to change the overall focus on to alternatives to incarceration to include low level, nonviolent offenses as well.  Commissioner Parker pointed out that while the Public Safety Act emphasized alternatives to incarceration for nonviolent drug offenders, TDOC’s data does not indicate any such shift having taken place yet because the discretion is not being exercised.

The Commissioner is correct. The Public Safety Act expressly calls for the implementation of validated risk needs assessments, in part “to assist the court in deciding whether to sentence an eligible defendant to an available and appropriate community-based alternative to incarceration.” In fact, the court must take into consideration any arguments in favor of sentencing alternatives, as well as “the nature and characteristics of the criminal conduct involved.”  Data from the Administrative Office of Courts indicates that only about 6 percent of drug dispositions actually result in diversion. When reviewed next to TDOC data, it would appear that a significant percentage of these dispositions are nonviolent drug offenses.

It appears that Tennessee’s criminal justice system could benefit from having a degree of legislative scrutiny applied to the court’s refusal to exercise discretion in favor of prison alternatives when appropriate. The courts in particular, must be encouraged to weigh in favor of evidence-based diversion programs whenever validated risk needs assessments indicate nonviolent offenses are driven by mental health or substance issues. The courts should not be able to continue this practice of placing all of the burden onto TDOC, and ultimately, the taxpayer.

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JULIE WARREN is a graduate of Marshall University and of Regent University School of Law. She also attended Georgetown Law Center as a visiting student. While in law school, she clerked on the Senate Judiciary Committee. Julie served four years at the U.S. Department of Justice in Washington, D.C. After a few years in private practice as a civil defense litigator, Julie returned to public service and began her work in the Office of the West Virginia Attorney General where she primarily served as an appellate advocate for the State of West Virginia and as legislative counsel to the Attorney General.

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