Mimesis Law
30 June 2022

Tennessee Prosecutors Assert “Right” To Prosecute Unconstitutional Law

Apr. 21, 2016 (Mimesis Law) — It used to suck to be a gang member in Knox County, and get caught committing a crime having nothing to do with the gang, because you paid for it at sentence anyway.  But then the Tennessee Court of Criminal Appeals held the gang enhancement statute unconstitutional, because of that tiny gap of there being no need to connect the crime to gang membership. Good times?  Not so fast.

Prosecutors contend they are preserving their rights by continuing to use the statute. According to Knox County Deputy District Attorney General Kyle Hixson,

If we dismissed (gang enhancement charges) now and the decision is then reversed by the Tennessee Supreme Court, then we have lost (the ability to prosecute) those. We are not flouting (the appellate court’s) opinion. We’re just preserving our rights.

Did we hear that correctly? Prosecutors believe the state has rights?

No, the state does not have rights; they have power and options. Rights are reserved to the people to protect them from overreaching governments. Yet, governments have options, like the option to appeal an adverse court ruling. Here, the government could (but has not yet) exercised its option to seek review by the Tennessee Supreme Court, although the Court has no obligation to hear the case. The Attorney General has 60 days to file for review and hasn’t even decided whether or not to seek such an appeal.

Of course they are not “flouting the opinion,” but absent an appeal, it is unclear why the prosecutors believe they are somehow exempt from the ruling.

Deputy District Attorney General Kyle Hixson said Thursday that Knox County prosecutors will neither dismiss current charges seeking to apply the gang enhancement law nor stop filing them.

That’s certainly a bold course of action. With total disregard for the appellate decision, the prosecutors have taken the liberty to continue with these unconstitutional enhancements in current cases as well as future cases. Why does this prosecutorial arrogance continue to prevail? Perhaps it stems from a general trend that fails to hold prosecutors accountable for their actions.

Taking a step back, let’s look at what the court held and why the prosecutors don’t like it.

[T]he state’s gang enhancement law is so broad it allows gang members to suffer extra punishment for crimes that had nothing to do with the gang or gang activity and the misdeeds of other gang members in which they weren’t even involved.

The court noted the law pushed by prosecutors and police was passed with good intent — to seek to quell gang violence — but was crafted so poorly it could apply to a member of a college fraternity. Like street gangs, fraternities use color schemes and symbols to show affiliation, and its members sometimes commit crimes that meet the law’s overly broad definition of “gang-related crime,” the court stated. The law defines “gang-related crime” as any offense in which a person either hurts or kills someone or threatens to hurt or kill someone while committing a crime. Hazing, the court noted, could qualify.

“It simply cannot be maintained that a statute ostensibly intended to deter gang-related criminal conduct through enhanced sentencing is reasonably related to that purpose where the statute in question is completely devoid of language requiring that the underlying offense be somehow gang-related before the sentencing enhancement is applied,” the opinion stated.

Essentially, the statute allows harsher punishment even where a particular crime may not be gang related. If you’re a prosecutor, that’s a great statute. It certainly makes it easy to be tough on crime. Just show a jury the defendant belongs to a gang, and you’ve got a greater punishment.

But, much like a similar statute in Florida that was also struck down, the court here found the statute is missing the nexus between the gang membership and the criminal conduct. If you’re a prosecutor, you don’t want the added burden of proving some connection between being in a gang and the criminal act. After all, they are gang members and deserve severe punishments. Plus it just makes their job harder.

Why not take the easy route? Prosecutors can show they are “tough on crime” while meting out harsher punishments and locking up more gang members. Prosecutors can threaten increased punishment in weaker cases to extort plea-bargains and avoid trials. The mere threat of increased prison time is usually enough to persuade the accused to forego his right to a trial.

The proof is in the pudding: Knox County prosecutors have used the gang enhancement to increase punishments in at least 60 cases and have threatened to use it as a bargaining chip in many more. This is certainly a tool they don’t want to lose. Plus, if the opinion stands, potentially hundreds of cases will come back on appeal or post-conviction relief for new sentencing hearings. But that’s okay, the taxpayer can foot that bill, right?

It’s a gamble either way.

In all fairness, it’s not completely absurd for the prosecutor to pursue enhancements until either the 60 days lapse and the opinion becomes final or the Supreme Court takes up the appeal. During the interim, the prosecutor can legally take the gamble. If the Supreme Court takes up their appeal and reverses the Court of Criminal Appeals, the prosecutor wins. They keep their past and future increased sentences and the ability to use this arrow in their arsenal for plea-bargaining.

However, assuming no appeal is filed, the opinion stands and the prosecutors and courts will be bound by its holding. Additionally, the Supreme Court could decline to hear the appeal, in which case the opinion becomes final, and the Knox County District Attorney can assign someone to handle all the writs and new punishment hearings. Apparently, this is the gamble they are willing to take.


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