No Mercy

Calvin Bryant committed a crime in the wrong place—and at perhaps the wrongest of times.

It was 2008 and Bryant, then 22, sold 320 pills, mostly Ecstasy, to a longtime family friend who had insisted that he needed the drugs so he could sell them to support his family.

But it turned out that family friend was working as an informant for the Metro Nashville Police Department in exchange for $1,870 and the dismissal of a pending felony charge. Because the drug sale took place at Bryant’s home in Nashville’s Edgehill housing projects, which was within 1,000 feet of a school, he had run afoul of Tennessee’s Drug-Free School Zone law. So the offense meant a mandatory minimum sentence 15 years and, even though Bryant did not have a criminal record, he was sentenced to 17 years in prison. Under state law, Bryant must serve 15 years before he is parole eligible. A supporter of Bryant’s on Nashville’s Metro Council later wrote that his sentence “was more severe than the sentence he would have received for committing a violent crime such as rape or second-degree murder.”

When Bryant was arrested in 2008, Nashville prosecutors were still strictly adhering to  Tennessee’s 1995 Drug-Free School Zone law that provided for “enhanced criminal penalties for violation within zone.” But in 2014, Davidson County District Attorney Glenn Funk took office and instituted a policy of not prosecuting cases under the Drug-Free School Zone law unless a child was actually endangered.

Today, Bryant is serving the 10th year of his sentence, with at least five more ahead of him. His lawyer, Daniel Horwitz, notes in a recent court filing that if Bryant’s home had simply been a little farther away from the school or if the sale had taken place a mere six years later, he almost certainly would have been released from prison seven years ago if not sooner.

Yet Bryant has yet to find relief in the courts. In January, a Davidson County judge described his sentence as “harsh” but declined to reduce it. Now he and Horwitz are seeking clemency from Governor Bill Haslam. But in the buckle of the Bible Belt, mercy is in short supply.

A Tennessee governor has not commuted a sentence since 2011, when Phil Bredesen granted 22 pardons and four commutations in the final days of his tenure (compare Haslam and Breseden’s record on commutations to former governor Ray Blanton, who issued 617 commutations and 41 pardons during his one term in the mid-late 1970s). In 2017, Haslam, a Republican, granted an executive exoneration to Lawrence McKinney, who had been cleared by DNA testing after serving 31 years for a rape he did not commit. The exoneration made McKinney eligible to receive compensation for his wrongful conviction. But while Haslam’s administration has received 512 applications for commutation since 2011, he has not commuted a single sentence during his eight years in office.

Haslam is empowered to grant pardons and commutations at his discretion. It’s a power that was once used regularly by his predecessors. In a 2016 article for the Tennessee Bar Association Journal, Nashville criminal defense attorney Benjamin Raybin noted that “until the early 1920s, clemency served as the primary temper on often harsh sentences and injustices within the judicial system, where many crimes were capital offenses.” Although its use has declined, clemency remains a powerful tool that governors can use to mitigate unduly harsh sentences and reduce high levels of incarceration. Tennessee is one of the most incarcerated states in America and, worse, among states in the top 25 for incarceration rates, Tennessee is one of just nine where the prison population increased from 2016 to 2017, according to a newly released study from the Vera Institute of Justice.

Asked why Haslam has not used his clemency power, and whether he plans to use it in the coming months, a representative would only say that the governor will consider it.

“The governor is considering pending clemency applications and may make additional grants of clemency in appropriate cases,” press secretary Jennifer Donnals told The Appeal.

Political timidity about using clemency powers is not unique to Haslam, nor is it solely a Southern-state phenomenon. Democratic New York Governor Andrew Cuomo, for instance, has commuted only 12 prison sentences in his nearly seven years in office.

Haslam’s unwillingness to grant clemency is compounded by recent criminal justice reform failures in Tennessee. A bill that would have reduced the reach of the state’s drug-free school zones—which cover large swaths of the city, particularly low-income and minority neighborhoods—from 1,000 feet to 500 feet had bipartisan support but was killed by 11th-hour opposition from the Tennessee District Attorneys General Conference. The state’s new Juvenile Justice Reform Act included provisions limiting the number of children held in state custody, particularly for minor offenses like school absences, while limiting the number of youth transferred into adult court. But the final version of the bill, signed into law by Haslam on May 21, was strongly criticized by juvenile justice experts as “gutted” of such meaningful reforms. Haslam also signed a bill last year overturning city ordinances in Nashville and Memphis that created reduced penalties for possession of small amounts of marijuana.

Applications for executive clemency must first go through the state’s Board of Parole which has referred only a small fraction to the governor despite receiving hundreds of applications.

In 2010, the board voted unanimously against recommending exoneration in Lawrence McKinney’s case, despite assertions from the judge and district attorney that McKinney was innocent. Last month, the board split on whether to recommend clemency for Cyntoia Brown, the Nashville woman serving a life sentence for killing a man—she said in self-defense—who had hired her for sex when she was 16.  “I don’t know why the governor, at this point, relies on their judgment at all,” Horwitz, Bryant’s attorney, told The Appeal. “They’ve pretty well proven themselves to be out of touch with the way I think most people feel about clemency issues.”

But the power of clemency need not be reserved for extraordinary, prominent cases. Through commutations, Haslam, a supposed moderate relative to Tennessee’s deep-red state legislature, could strike a blow against the state’s rising prison population by reducing the sentences of entire classes of prisoners. Bryant’s case is perhaps uniquely sympathetic, but 436 people have been convicted under Tennessee’s drug-free school zone law since it was enacted, according to a court filing in Bryant’s case. A recent Reason investigation found that cases prosecuted under the law that involve the actual endangerment of children are rare and that around 100 offenders ensnared in the law did not have a prior felony conviction. If he wanted to, Haslam could show them all mercy tomorrow.