The Tennessee laws on pardon and parole are found in Tenn. Code Ann. §§ 40-28-126 through 40-28-128.
Board of Probation and Parole
Pursuant to the Tennessee statutes, a full-time autonomous board of probation and parole has been created that consists of seven members who must be appointed by the governor. The board must have the authority to perform all administrative functions necessary to carry out its duties, including the submission of a budget request to the commissioner of finance and administration and the submission of personnel actions to the commissioner of personnel. In all respects, the board must be separated functionally and administratively from any other agency[i].
Powers and Duties of Board
- The authority to select and recommend to the appropriate state officials the employment or transfer of all personnel required for the operation of the board, except, however, the initial transfer of any career service employee pursuant to the merger of probation and parole field services and community corrections must not result in any impairment, interruption or diminution of employee rights, salary, benefits, leave accumulation or employment
- The authority to develop and implement guidelines for granting or denying parole, which guidelines must be reviewed and reevaluated by the board at least annually and copies of the guidelines must be provided to the governor, the commissioner of correction and the appropriate standing committees of the general assembly;
- The authority to prescribe all forms to be used by the board in the transaction of its business;
- The authority to adopt an official seal by which its acts and proceedings must be authenticated, and of which a court or other officials concerned with actions of the board must take judicial notice;
- The authority to employ other employees and to incur such other expenses, within the limits of appropriations, as may be necessary for the proper discharge of its duties;
- The authority to issue subpoenas subject to the provisions of this chapter;
- The duty to cooperate with other state agencies in developing and promoting effective probation and parole programs;
- The duty to keep appropriate records of all its official actions and to make them accessible in accordance with the law and the regulations of the board;
- The duty, upon the request of the governor, to consider and to make nonbinding recommendations concerning all requests for pardons, reprieves or commutations. The board must have discretion to make either favorable or unfavorable recommendations based upon its application of guidelines and criteria adopted by the governor;
- The duty to adopt written long-range goals and objectives. The goals and objectives must be reaffirmed or changed, as appropriate, by the board at least once each year;
- The duty to adopt written policies and procedures to govern its internal operations, taking into consideration the policies and procedures as are reflected in the management standards of the Manual of Standards for Adult Parole Authorities, published by the Commission on Accreditation for Corrections and the American Correctional Association or other authorities that it may wish to consult, it being the legislative intent that the board have authority to freely adopt policies and procedures to meet its own particular needs.
- The authority, upon request of the governor, to issue warrants authorizing the arrest and return to their former places of incarceration of persons who are reasonably believed to have violated the conditions of their grants of executive clemency;
- The authority to employ staff attorneys who are licensed to practice law in the state and to employ others as the board may deem necessary; and
- The duty to establish conditions of supervision for and supervise sex offenders sentenced to community supervision for life[ii].
Eligibility for Parole
In Tennessee, every person sentenced to an indeterminate sentence and confined in a state prison, after having served a period of time equal to the minimum sentence imposed by the court for the crime of which the person was convicted, must be subject to the jurisdiction of the board. The time of release must be at the discretion of the board, but no such person must be released before serving the minimum sentence nor before serving one year. Every person sentenced to a determinate sentence and confined in a state prison, after having served a period of time equal to one half of the sentence imposed by the court for the crime for which the person was convicted, but in no event less than one year, must likewise be subject to parole in the same manner provided for those sentenced to an indeterminate sentence. The action of the board in releasing prisoners must be deemed a judicial function and must not be reviewable if done according to law. If a prisoner has been accorded a bona fide offer of employment, the board may release the prisoner on probationary parole under either of the following conditions:
(1) At any time not more than six months before the prisoner’s date of eligibility for parole as provided in this chapter if, after all credit for good conduct, that eligibility must occur more than eighteen months and less than five years from the date of sentence; or
(2) At any time not more than one year before the prisoner’s date of eligibility for parole as provided in this chapter if, after all credit for good conduct, that eligibility must occur more than five years from the date of sentence.
Moreover, the prisoner must at all times during probationary parole be under the supervision of the board. The board may revoke the probationary parole for any reason satisfactory to it. The board of probation and parole is authorized to release a prisoner on parole on the date specified in a sentencing agreement entered into by the prisoner, the board, and the department of correction. In granting parole, the board may impose any conditions and limitations that the board deems necessary.
The Tennessee general assembly declares it to be public policy that no person must be granted parole, notwithstanding any law, rule or regulation to the contrary, until the person has successfully completed a test requiring that individual to master certain basic and other skills. The test must include, as a minimum requirement, scoring at an eighth grade reading level. This requirement must not apply to any person certified by the commissioner of correction or the commissioner’s designee as being so retarded or mentally ill as to be incapable of learning at the required levels. Furthermore, it must not apply to the following:
(A) Persons who are incarcerated in county jails or workhouses;
(B) Persons who are in the custody of the board of probation and parole for less than one year; or
(C) Persons who have high school diplomas or the equivalent.
The Tennessee statutes further provides that the commissioner or the commissioner’s designee, the board of probation and parole and the state board of education must jointly formulate policies and procedures. The provisions of the statute must be inapplicable to any inmate or group of inmates if the commissioner determines that its effectuation will increase the system’s inmate population and if the commissioner so certifies the determination to the governor. The department of correction must not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as close custody. This decertification must continue for the duration of the classification, and for a period of one year thereafter. The department of correction must not certify an inmate for a parole grant hearing, other than an initial grant hearing, if, at the time the department of correction would otherwise have certified the inmate as eligible, the inmate is classified as maximum custody. This decertification must continue for the duration of the classification and for a period of two years thereafter[iii].
Power to Parole
Pursuant to the Tennessee law, the board has the power to cause to be released on parole any person who has been declared eligible for parole consideration by the board. No person convicted of a sex crime must be released on parole unless a psychiatrist or licensed psychologist designated as a health service provider has evaluated the inmate and determined to a reasonable medical or psychological certainty that the inmate does not pose the likelihood of committing sexual assaults upon release from confinement. The evaluations must be provided by psychiatrists or licensed psychologists designated as health service providers whose services are contracted for and funded by the board. Notwithstanding any other provision relating to parole eligibility, and when acting pursuant to the Tennessee Contract Sentencing Act of 1979, the board is authorized to release a prisoner on parole on the date specified in a sentencing agreement entered into by the prisoner and the board. In granting parole, the board may impose any conditions and limitations that the board deems necessary[iv].
Grounds for Parole
The statutes further provide that parole being a privilege and not a right, no prisoner must be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board is of the opinion that there is reasonable probability that the prisoner, if released, will live and remain at liberty without violating the law, and that the prisoner’s release is not incompatible with the welfare of society. If the board so determines, the prisoner may be paroled and if paroled must be allowed to go upon parole outside of prison walls and enclosure upon the terms and conditions as the board must prescribe, but to remain for the duration of parole in the legal custody of the warden of the prison or the supervisor of the county jail or workhouse from which the prisoner is paroled, until the expiration of parole. The terms and conditions of parole set by the board may specifically include the requirement that a prisoner pay restitution to the victims of the crimes for which the prisoner had been sentenced to prison, to compensate them for their personal injuries or property losses or both proximately caused through the commission of those crimes. Every prisoner who has never been granted a parole of any type by the board on a particular sentence of imprisonment must be granted a mandatory parole by the board subject to the following restrictions:
- Prisoners serving an indeterminate or determinate sentence with a maximum term of two years up to ten years inclusive, as fixed by the court, must be paroled by the board ninety days prior to the completion of the maximum term of sentence less credit for good and honor time and incentive time;
- Prisoners serving a determinate or indeterminate sentence with a maximum term of more than ten years as fixed by the court, must be paroled by the board six months prior to the completion of the maximum term of sentence less credit for good and honor time and incentive time;
- All prisoners mandatorily paroled must be paroled under the provisions and conditions as the board may deem necessary. A violation of the provisions and conditions must subject the prisoner to all the penalties and provisions of law now provided in case of violation of the terms of parole. Upon a violation, the prisoner must not receive another mandatory parole, but may be paroled at the discretion of the board;
- Every prisoner released on mandatory parole must receive a money and clothing allowance, as set out in § 41-21-219, for prisoners released on parole; and
- Prisoners who have been convicted of a sex offense must not be released on mandatory parole unless they have been evaluated and met the requirement described in § 40-28-116(a)[v].
Moreover, the board is charged with the duty of determining what prisoners serving a felony sentence of more than two years or consecutive felony sentences equaling a term greater than two years in state prisons, jails and county workhouses may be released on parole and when and under what conditions. The board is charged with the duty of supervising all prisoners released on parole from the prisons of the state, workhouses, jails or those accepted through the interstate compact, and of making investigation as may be necessary in connection therewith. The board is charged with determining whether violation of parole conditions exists in specific cases and of deciding the action to be taken in reference to the violation. It is also the duty of the members of the board to study the prisoners confined in the prisons, workhouses and jails when they are eligible for parole consideration so as to determine their ultimate fitness to be paroled. A probation and parole officer may, with the consent of the director and subject to the approval of the board, suspend direct supervision of a parolee after a successful two-year period of supervision. The parolee must continue on parole and be subject to all rules and conditions of parole. A parolee who violates the rules and conditions may be subject to reinstatement of direct supervision or revocation of parole[vi].
Furthermore, if the probation and parole officer in charge of a paroled prisoner have reasonable cause to believe that the prisoner has violated the conditions of parole in an important respect, the officer must report the facts to the director of probation and parole. The director or the director’s designee must review the reports and may issue a warrant for the retaking of the prisoner if the director or the director’s designee agrees that parole may have been violated in an important respect. The governor has the power to issue requisition for the person if the person has departed from the state[vii].
Pursuant to Tenn. Code Ann. § 40-28-125, whenever the board is satisfied that a parolee has kept the conditions of parole in a satisfactory manner, the board must issue to the parolee a certificate of final discharge. This final discharge from parole will be granted only after a parolee has completed the maximum sentence imposed, less the reduction allowed for good and honor time, incentive time, and sentence credits earned and retained. If a parolee is not eligible for a certificate of discharge because of a pending violation, parole will expire at the end of the maximum sentence less diminution for good and honor time, incentive time and sentence credits earned and retained, plus delinquent time. However, this is in no way to be construed as permitting a discharge from parole for parolees with a life sentence.
[i] Tenn. Code Ann. § 40-28-103.
[ii] Tenn. Code Ann. § 40-28-104.
[iii] Tenn. Code Ann. § 40-28-115.
[iv] Tenn. Code Ann. § 40-28-116.
[v] Tenn. Code Ann. § 40-28-117.
[vi] Tenn. Code Ann. § 40-28-118.
[vii] Tenn. Code Ann. § 40-28-607.