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VOL. 133 | NO. 120 | Friday, June 15, 2018

TBA Gubernatorial Forum Focuses on Criminal Justice Reform

By Bill Dries

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Four of the major contenders for Tennessee governor told the annual convention of the Tennessee Bar Association Thursday, June 14, that they each favor keeping the state attorney general a position appointed by the Tennessee Supreme Court.

And each said if elected they would keep outgoing Gov. Bill Haslam’s executive order that leaves in place a judicial nominating commission to recommend finalists to the governor for trial and appellate court vacancies in the state. And all called for studies and reforms of the cash bail system in Tennessee courts.

Republican contenders Beth Harwell and Randy Boyd as well as Democratic contenders Karl Dean and Craig Fitzhugh were each questioned separately at the TBA session at The Peabody hotel that drew an audience of more than 400 attorneys and judges. While they were questioned one at a time, the contenders in the Aug. 2 statewide primaries were not prevented from hearing how the other candidates answered.

“Some of my colleagues don’t think there should be a third branch,” said Fitzhugh, a Democratic state representative from Ripley who has practiced law, referring to the judiciary. “I’m being a little facetious, but not much.”


Harwell, the Republican speaker of the state house and an educator by trade, began by saying, “I know the importance of your branch of government.”

Fitzhugh said there is a downside to being the only state in the union whose attorney general is appointed instead of elected. It leaves the office of governor as the only statewide elected office in state government.

Boyd noted that in other states the attorney general is “the person who could be the next governor.”

Both Dean and Fitzhugh are attorneys. Dean was a law director and public defender in metro Nashville government before serving as Nashville mayor. Fitzhugh is a banker by trade whose four years in the Air Force included serving in the Judge’s Advocate General Corps, also known as JAG, and then practicing law when he returned to Ripley.


Boyd admitted to feeling somewhat out of his element as a non-lawyer.

“I’m a businessman. I’m not a lawyer,” he said as he outlined several million dollars in legal bills his company pays each year. “I might be a customer,” he added.

On the question of bail reform, Boyd said a study of the system might also look at technology to track those awaiting trial who are not in a pretrial jail.

“We can track your dog anywhere on the planet,” added Boyd, the founder of a pet products business that includes dog fences and tracking devices.

He also vowed to cut the time it takes to process evidence in the Tennessee Bureau of Investigation laboratory, saying the current six-month average wait isn’t good enough.

Harwell said local law enforcement running background checks on the immigration status of people arrested on non-immigration charges is an “appropriate action.”

Dean said the Legislature’s passage of a law banning sanctuary city status and requiring local law enforcement to cooperate with federal immigration agents is “a solution looking for a problem.”


“If it’s required, the state should cooperate,” he added.

Fitzhugh expressed concern about the legislation.

“It’s not our job,” he said. “We don’t have that capability. Look at what we are doing to the kids,” he said of the separation of children from parents detained on immigration charges.

Boyd, whose television ads have featured him saying, “Illegal is illegal,” and taking a strong stand for a U.S.-Mexico border wall favored by President Donald Trump, told the TBA group, “We have to abide by the law.”

Asked about racial disparities in the criminal justice system in general, Fitzhugh said, “We incarcerate too many young, black males. And there’s a reason. We’ve got to figure that out.”

Dean, when asked about criminal justice reform, began by saying, “Politics is about what you can accomplish.”


Dean said as other state legislatures are moving toward reducing the level of incarceration, the Tennessee Legislature seems to be moving in the other direction.

“We can’t afford to lock up everybody people want to lock up,” he added.

Dean also said he is opposed to legalizing marijuana possession, but called for a “sort of decriminalization” of simple possession.

TBA president Lucien Pera said Haslam has made approximately 55 judicial appointments during his two terms as governor, including using the executive order after the Legislature abolished the requirement that the governor receive recommendations from a nominating committee that screens applicants and recommends three finalists.

Haslam’s executive order essentially keeps what was required by law before. In the case of appellate court judicial appointees by the governor, those must be approved by the Legislature. That approval does not apply to trial court appointees.

“The way the governor does that is important. Haslam had a really good way to do that,” Pera said. “The people he appoints are important.”

Pera, a Memphis attorney, also said continuing Haslam’s increase in the pay of court-appointed attorneys is an important issue.

“This year, a 25 percent increase in the budget for appointed counsel for criminal defendants, for parents losing parental rights – 25 percent is $10 million,” he said. “To draw the candidates’ attention to this issue is the most important thing. … Part of the purpose of a forum like this is to hear what they think but also make them think more.”

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