The Tennessee attorney general will let stand a ruling striking down the state’s gang enhancement law as unconstitutional, a move that could invalidate multiple criminal convictions. One factor cited is the Legislature’s move to change the questioned law during the past legislative session.
Harlow Sumerford, spokesman for Attorney General Herbert H. Slatery III, said Wednesday the office will not seek a Tennessee Supreme Court review of a decision in April by a lower appellate court declaring the law constitutionally unsound.
Slatery’s decision comes after the state Legislature quickly passed a new version of the law, which boosts penalties for crimes committed by alleged gang members, in the wake of the Court of Criminal Appeals ruling.
“One of the many factors in that decision included the General Assembly amending this statute this past session,” Sumerford said.
The new law applies only to future prosecutions, so every case in Tennessee in which the old statute — first passed in 2012 — was successfully used is now considered flawed. Knox County has been a hotbed for such prosecutions.
Although exact figures were not available Wednesday, Knox County District Attorney General Charme Allen’s office estimated at least 60 convictions under the old law are in jeopardy. In addition, all pending gang enhancement charges must be dismissed, Deputy District Attorney General Kyle Hixson said.
Hixson said prosecutors will not take the lead in determining which cases now need to be reheard and how.
“It will be up to the convicted parties to determine if they wish to challenge their sentence,” he said.
Using a Knox County case as a backdrop, the appellate court ruled the gang enhancement law was so broad it allowed gang members to suffer extra punishment for crimes that had nothing to do with any gang or gang activity and for the misdeeds of other gang members in which they weren’t even involved.
Tennessee largely stood alone in the nation for punishing criminals simply for being in a gang. Membership in a gang — even a criminal one — is not by itself illegal.
The Legislature revised the law to specifically require proof the underlying crime was committed “at the direction of, in association with or for the benefit of” either the gang or a fellow gang member.
But the Legislature did not address other constitutional issues with the old law raised by the appellate court, said Knoxville attorney Stephen Ross Johnson, who has served as president of the Tennessee and the national associations of criminal defense attorneys.
“How do we determine you are a gang member?” Johnson asked, noting the appellate court faulted that section of the law as well.