FEDERAL SENTENCING UPDATE

FEDERAL SENTENCING UPDATE

Oct 10, 2023 | Federal Criminal Law

FEDERAL SENTENCING UPDATE: AMENDMENTS SCHEDULED TO TAKE EFFECT NOVEMBER 1, 2023

For the first time in five years, the United States Sentencing Commission has adopted proposed amendments to the Federal Sentencing Guidelines. These amendments are currently with Congress for a 180-day review period ending November 1, 2023. If Congress does not act to disapprove the amendments, they will become effective at that time. This article provides a summary of some important proposed changes.

Amendment 821: Criminal History

Amendment 821 makes three important changes to the criminal history rules, all of which could reduce the guideline range for certain offenders. Because two parts of Amendment 821 (Parts A and B) may reduce the sentencing range of future defendants, the Commission was required to consider retroactivity—e.g., whether judges can extend those reductions to those individuals already incarcerated. In August of 2023, the United States Sentencing Commission voted 4-3 to authorize judges to begin considering petitions for sentence reductions for eligible prisoners beginning February 1, 2024 (assuming the new guidelines become effective November 1, 2023).

Part A: “Status Points” will no longer apply to offenders with less serious criminal histories

Part A of Amendment 821 limits the criminal history impact of “Status Points” at § 4A1.1. First, the amendment limits the use of “Status Points” – which are added if a defendant committed the instant offense “while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status” in certain situations. As amended, the “status points” provision applies only to offenders with more serious criminal histories under the guidelines. In other words – “status points” will no longer apply to offenders with less serious criminal histories – i.e., six or fewer criminal history points – even if the instant offense was committed while the offender was under a criminal justice sentence.

Second, the amendment changes U.S.S.G. § 4A1.1(e). For defendants with more serious criminal histories (seven or more criminal history points), the amendment adds one point, rather than two points.

In support of these changes, data released by the Sentencing Commission reveals that over the last five years, status points were applied in 38% of cases. This resulted in moving 62% of such offenders into a higher criminal history category. At the same time, Commission data revealed that status points minimally improve the criminal history score’s successful prediction of rearrest – by just .2%. See https://www.ussc.gov/guidelines/amendment/821

Part B: Zero-Point offenders may receive a decrease of two offense levels

Part B, Subpart 1 of Amendment 821 creates a new Chapter Four guideline at § 4C1.1 decreasing by two the offense levels for defendants who did not receive any criminal history points and whose instant offense did not involve specific aggravating factors.
Part B of this amendment is in response to Congress’ directive to consider the appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first time offender who has not been convicted of a crime of violence or other serious offense.

Accordingly, “zero point offenders” are now defined as individuals with no criminal history points subject to a series of exclusions related to the seriousness of the instant offense of conviction or certain aggravating factors. See U.S.S.G. § 4C.1.1 (Proposed Amendment 821).

In explaining this change, the Commission noted that zero-point offenders recidivated far less than other offenders (27% versus 42% for one-point offenders). In 2021, zero-point offenders accounted for one-third of the federal sentencing caseload with district courts sentencing just 39% of these offenders within the guidelines range (often citing overstatement of criminal history as a reason for below range sentences). Seehttps://www.ussc.gov/guidelines/amendment/821

Part C: Downward departure may be warranted for criminal history reasons in prior marijuana possession sentences

Part C amends § 4A1.3 Commentary to include prior marijuana possession as an example of when a downward departure due to the defendant’s criminal history may be warranted. In other words, Part C now provides that a downward departure may be warranted if the defendant received criminal history points from a sentence for possession of marijuana for personal use (without an intent to sell or distribute).

The Commission’s rationale for this amendment is that many states have reduced or eliminated penalties for marijuana possession but these convictions still impact a federal offender’s criminal history score. The Commission noted that marijuana possession priors increased the criminal history score for 8% of all federal offenders sentenced in fiscal year 2021 – moving 40% of such offenders into a higher criminal history category. Most marijuana possession priors were for state court convictions resulting in less than 60 days in prison.

In fiscal year 2021, 97% of federal offenders’ marijuana possession priors were for state convictions – some from states that have reduced or eliminated penalties. However, marijuana possession priors from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders. See https://www.ussc.gov/guidelines/amendment/821

Retroactivity: Parts A and B may apply to currently incarcerated individuals

The Commission has estimated that retroactive application of Parts A and B of Amendment 821 would affect many currently incarcerated individuals:

  • 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
  • 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average. See https://www.ussc.gov/research/data-reports/retroactivity-analyses-and-data-reports.

As stated above, this year’s guideline amendments are with Congress for a 180-day review period ending November 1, 2023.  If Congress does not act to disapprove the amendments, courts can begin considering petitions for sentence reductions and could order a reduced term of imprisonment effective February 1, 2024 or later.

Amendment 814: Compassionate Release

Amendment 814 responds to the First Step Act of 2018, which authorized courts to grant a motion for a sentence reduction based on a defendant’s own motion. Amendment 814 revises § 1B1.13 to reflect that a defendant is authorized to file a motion for compassionate release, making § 1B1.13 applicable to motions filed by the defendant and motions filed by the Bureau of Prisons (BOP).

As outlined below, the amendment also expands the list of “extraordinary and compelling reasons” for compassionate release in five ways: (1) adds “medical circumstances” subcategories; (2) modifies the “family circumstances” category; (3) adds a “victim of abuse” category; (4) revises the “other reasons” category; and (5) adds an “Unusually Long Sentences” category, permitting consideration of non-retroactive changes in law in a limited set of circumstances. See https://www.ussc.gov/guidelines/amendment/814

Additional Medical Circumstances Considered

With Amendment 814, the Commission expanded medical circumstances (as a basis for compassionate release) to include those that were most often cited by courts in granting sentence reduction motions—including the requirement of long-term care and circumstances arising from COVID-19 (and other outbreaks of infectious disease). See U.S.S.G § 1B1.13(b)(1) (Proposed Amendment 814)

With regard to long-term care, the defendant must be “suffering from a medical condition that requires long-term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death.” U.S.S.G § 1B1.13(b)(1)(C) (Proposed Amendment 814).

The subsection regarding COVID-19/outbreaks, requires that:

(i) the defendant is housed at a correctional facility affected or at imminent risk of being affected by (I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared by the appropriate federal, state, or local authority;

(ii) due to personal health risk factors and custodial status, the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or the ongoing public health emergency described in clause (i); and

(iii) such risk cannot be adequately mitigated in a timely manner.
U.S.S.G § 1B1.13(b)(1)(D)(Proposed Amendment 814).

Additional “Family Circumstances” Considered

Second, the modification to the list of extraordinary and compelling reasons revises the “family circumstances” ground in three ways. It expands the provision relating to the death or incapacitation of the caregiver of a defendant’s minor child to include a child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition. See U.S.S.G. § 1B1.13(b)(3)(A).

Also, the amendment creates a new provision that applies when a defendant’s parent is incapacitated, and the defendant would be the only available caretaker. Finally, the amendment creates a new provision when circumstances exist with respect to a person whose relationship with the defendant is similar in kind to that of an immediate family member, and the defendant would be the only available caretaker. Relief is available under the two new provisions only if the defendant establishes both the existence of a qualifying relationship and the defendant is the only available caregiver. § 1B1.13(b)(3)(C-D).

New “Victim of Abuse” Category

This provision addresses instances where an individual in custody has been the victim of sexual assault by a correctional officer, an employee or contractor of the BOP, or any other individual having custody or control over the defendant. This misconduct must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding unless the defendant establishes that such proceedings are unduly delayed or the defendant is in imminent danger. U.S.S.G. § 1B1.13(b)(4) (Proposed Amendment 814).

For some background, in 2022, the Senate Permanent Subcommittee on Investigations found widespread sexual abuse by officers in federal prisons with few consequences. As a result of this investigation, the Department of Justice has asked for harsher prison sentences for officers who abuse the people they are intended to protect. The new directors of the BOP are reviewing how wardens are selected and supervised. Additional cameras are being installed in facilities. Also, the bipartisan Federal Prison Oversight Act has been introduced, which aims to create independent oversight of the federal prison system and provide for more inspections of those facilities.

Modified “Other Reasons” Category

This broad catchall provision is retained in the amendment and gives courts the ability to consider other reasons similar in gravity to those enumerated. It makes clear that courts have both discretion and guidance necessary to grant reductions in cases with reasons similar in gravity to those already considered in any appropriate case. U.S.S.G. § 1B1.13(b)(5) (Proposed Amendment 814).

New “Unusually Long Sentences” Category

This amendment responds to a circuit split concerning whether changes in law (including amendments to the Guidelines manual that have not been made retroactive) may be considered in ruling on a sentence reduction motion. The amendment permits the consideration of such changes in law only when a defendant has served 10 years and an intervening change in the law would have resulted in a shorter sentence had it been in place at the time of sentencing.” U.S.S.G. § 1B1.13(b)(6)(Proposed Amendment 814).

Amendment 818: Fake Pills – Two-Level Enhancement

Amendment 818 adds a two level enhancement at § 2D1.1(b)(13) for cases where the defendant represented or marketed as a legitimately manufactured drug another substance containing fentanyl or a fentanyl analogue and acted with willful blindness or conscious avoidance of knowledge that such mixture or substance was not the legitimately manufactured drug.

As background, in 2018, the Commission added a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance. Sentencing Commission data reveals, however, that federal fentanyl and fentanyl analogue cases have dramatically risen since that time. In the last fiscal year, for example, 50.6 million fake pills were seized, 70% of which contained fentanyl. See https://www.ussc.gov/guidelines/amendment/818 According to the CDC overdose deaths that had evidence of fake pills use accounted for just 2% of fatalities between July and September of 2019. That figure jumped to 4.7% between October and December of 2021.

The Sentencing Commission has attempted to address this issue by creating this new two-level enhancement to address the increased culpability of those who act with willful blindness or conscious avoidance of knowledge. The new alternative two-level enhancement provides that the government bears the burden to prove by a preponderance of the evidence that the enhancement applies based on the subjective belief and deliberate action of the defendant committing the offense. See https://www.ussc.gov/guidelines/amendment/818

Amendment 822: Career Offender

This amendment clarifies definitions in the § 4B1.2 Career Offender guidelines related to the meaning of “robbery” and “extortion” and the treatment of inchoate offenses.

First, the amendment moves, without change, the definitions including certain inchoate and accessory offenses as well as enumerated offenses (i.e., “forcible sex offense” and “extortion”) and “prior felony conviction” from the § 4B1.2 Commentary to the guideline itself. This change addresses a circuit split – and clarifies that these definitions are now authoritative.

Also, with regard to inchoate offenses, the amendment clarifies that “[t]he terms ‘crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.” U.S.S.G. § 4B1.2 (Proposed Amendment 822).

Finally, the amendment adds a definition of “robbery” that mirrors the “robbery” definition at 18 U.S.C. § 1951(b)(1), and revises the definition of “controlled substance offense” in §4B1.2(b) to include new maritime-related offenses. For more information on this amendment, see https://www.ussc.gov/guidelines/amendment/822

Amendment 820: Acceptance of Responsibility

This amendment is in response to a circuit conflict over whether a sentence reduction for acceptance of responsibility, which requires a § 3E1.1 motion from the government, may be withheld or denied if a defendant moves to suppress evidence or raises sentencing challenges.

The current guidelines provide the following:

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
3E1.1(b)

The issue with this provision is that circuit courts have defined “preparing for trial” differently. Three circuits (the Third, Fifth, and Sixth Circuits) allow the government to withhold a 3E1.1 motion based on the defendant’s filing of a suppression motion. Five circuits (the First, Second, Ninth, Tenth, and D.C. Circuits) have held that a reduction may not be denied on this basis. With regard to sentencing challenges, the First, Third, Seventh and Eighth Circuits have held that the government may withhold such motion based on defendant’s sentencing challenges, while the Second and Fifth circuits have held that it may not.

This circuit split resulted in uneven sentencing. And the impact of losing an additional level under 3E1.19(b) resulted in defendants (in some districts) being deterred from exercising their constitutional rights by pursuing evidentiary and/or sentencing challenges. As Justices Sotomayor and Gorsuch observed in 2021, the conflict as to whether a suppression hearing is a valid basis for denying a §3E1.1(b) reduction is both longstanding and has a potentially significant impact on defendants. See Longoria v. United States, 141 S. Ct. 978, 979 (2021) (statement of Sotomayor, J., with whom Gorsuch, J. joins, respecting the denial of certiorari, “emphasiz[ing] the need for clarification from the Commission” on this “important and longstanding split among the Courts of Appeals over the proper interpretation of § 3E1.1(b)”).

The 2023 Amendment now clarifies that suppression motions and sentencing objections are not considered “preparing for trial.” And do not prevent a defendant from later requesting a one level reduction under 3E1.1:

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level. The term “preparing for trial” means substantive preparations taken to present the government’s case against the defendant to a jury (or judge, in the case of a bench trial) at trial. “Preparing for trial” is ordinarily indicated by actions taken close to trial, such as preparing witnesses for trial, in limine motions, proposed voir dire questions and jury instructions, and witness and exhibit lists. Preparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered “preparing for trial” under this subsection. Post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered “preparing for trial.”

U.S.S.G. § 3E1.1(b) (Proposed Amendment 820).

Amendment 819: Firearms

Following the Uvalde, Texas shooting, Congress passed the Bipartisan Safer Communities Act, wherein Congress directed the Commission to increase certain firearms penalties. Amendment 819 is a response to this directive. This amendment also reflects the Commission’s concern about “ghost guns”—particularly the increased frequency with which they are being used in criminal activity and the difficulty in tracing these firearms. See https://www.ussc.gov/guidelines/amendment/819

New Straw Purchase and Firearms Trafficking Offenses

The Bipartisan Safer Communities Act established two new offenses. The Act makes it unlawful to engage in straw purchasing of firearms (18 U.S.C. § 932) or trafficking in firearms (18 U.S.C. § 933). Both carry statutory maximum sentences of 15 years of imprisonment. 18 U.S.C. §§ 932(c)(1), 933(b). The statutory maximum in section 932 increases to 25 years where the defendant has reasonable cause to believe the firearm would be used to commit a felony or certain other offenses. 18 U.S.C. § 932(c)(2).

Amendment 819 makes two changes to account for the new offenses at 18 U.S.C. §§ 932 and 933 established by the Act. As both offenses address conduct that is analogous to other firearms offenses, the Commission determined that the most appropriate guideline is § 2K2.1. Amendment 819, therefore, amends Appendix A (Statutory Index) to reference these new offenses to § 2K2.1.

Second, the amendment revises § 2K2.1 to set the base offense level for defendants convicted of these crimes at level 14, or level 20 if the offense involved either a semiautomatic firearm that is capable of accepting a large capacity magazine or a firearm described in 26 U.S.C. § 5845(a).

Increased Penalties for Straw Purchasing and Trafficking Offenses

Amendment 819 revises the existing “trafficking” specific offense characteristic at § 2K2.1(b)(5) to increase penalties for illegally transferring a firearm. The amendment enhances penalties under this subsection in three ways. First, it creates a new subsection 2K2.1(b)(5)(A) which provides a two-level enhancement for defendants convicted of illegally receiving a firearm under 18 U.S.C. § 933(a)(2) (the trafficking receipt provision) or § 933(a)(3) (attempting/conspiring to violate section 933).

Second, the amendment creates a new subsection 2K2.1(b)(5)(B), which provides a two-level enhancement for any defendant engaged in straw purchasing or trafficking, to provide an increase for defendants who attempted, conspired, or engaged in conduct involving the illicit transfer of a firearm or ammunition but who would not have received the trafficking enhancement prior to the amendment because of the limiting criteria in the existing Application Note 13.

Third, the amendment revises subsection § 2K2.1 (b)(5)(C) to provide for an increase for defendants who attempted, conspired, or engaged in conduct involving the illicit transfer of two or more firearms to a person who (i) had a prior conviction of a crime of violence, controlled substance offense, or misdemeanor crime of domestic violence; (ii) was under a criminal justice sentence at the time of the offense; or (iii) intended to use or dispose of the firearms unlawfully. The new subsection (b)(5)(C) increases the enhancement from four levels to five levels to ensure straw purchasers and firearms traffickers meeting these criteria receive increased penalties.

Increased Penalties for Organized Crime

Amendment 819 increases penalties for organized crime by creating a new specific offense characteristic providing for a 2-level enhancement under § 2K2.1(b)(8) for trafficking in connection with knowingly participating in a criminal organization. Section 2K2.1(b)(8) applies to those defendants who receive an increase for trafficking (under subsection (b)(5)) and who committed the offense in connection with the defendant’s participation in an organization of five or more persons, knowing, or acting with willful blindness or conscious avoidance of knowledge, that the organization has as one of its primary purposes the commission of criminal offenses.

Increased Penalties for “Ghost Guns”

Amendment 819 addresses concerns raised by the Department of Justice regarding increased use of “ghost guns” (privately made guns with no serial number). The Commission determined that the same four-level enhancement under 2K2.1(b)(4) that applies in offenses involving an altered or obliterated serial number should be applied in these “ghost gun” cases as well.

Accordingly, Amendment 819 amends 2K2.1 to add a four-level increase for certain offenses involving “ghost guns.” This enhancement applies if the defendant knew that the offense involved a firearm not marked with a serial number, or the defendant was willfully blind or consciously avoided knowing this fact. In adding the enhancement, the Commission noted that there is no meaningful distinction between a firearm with an obliterated serial number, which has long-triggered a four-level enhancement under § 2K2.1(b)(4), and a firearm that is not marked with a serial number.

The amendment also specifically excepts firearms manufactured before the effective date of the Gun Control Act of 1968, which imposed the requirement that federal firearms licensees serialize newly manufactured or imported firearms. See U.S.S.G. § 2K2.1 (Proposed Amendment 819).

Reduction for Mitigating Circumstances

Congress directed the Commission to consider an amendment for straw purchasers with mitigating circumstances. Accordingly, Amendment 819 creates a two-level decrease at (b)(9) for less culpable straw purchasers with no more than one criminal history point. The amendment creates a new specific offense characteristic at § 2K2.1(b)(9) providing a two-level reduction available to defendants who (A) receive an enhancement at subsection (b)(5), (B) have no more than one criminal history point and: “(i) was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense; or (ii) was unusually vulnerable to being persuaded or induced to commit the offense due to a physical or mental condition.” U.S.S.G. § 2K2.1(b)(9)(C) (Proposed Amendment 819).

The amendment also deletes Application Note 15, which provided for a downward departure for certain straw purchasers, because the amended subsection (b)(9) provides a reduction with broader criteria.

Amendment 817: Safety Valve

In response to the First Step Act of 2018, Amendment 817 expands the applicability of the safety valve provision by allowing more offenders to be eligible for relief from mandatory minimum penalties. As originally enacted, the safety valve provision applied only to certain offenses and to defendants who, among other things, had not more than one criminal history point under the guidelines.
The amended § 5C1.2 extends the applicability of the safety valve to maritime cases. And, the act broadens the criminal history eligibility criteria to include defendants who do not have:

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines.

Note that this language is adopted from the First Step Act and is the subject of a current circuit conflict that the Supreme Court will resolve in the fall term. The issue is the operation of the word “and” (in bold). The DOJ argues that “and” means “or” – that defendants are ineligible if they fail any of the three subparts. The appellant in that case argues that “and” means that a defendant must fail all three subparts to be ineligible.

Amendment 817 also revises § 5C1.2(b) to account for Congress’s directive requiring that the guideline minimum be at least 24 months for defendants whose statutorily required minimum sentence was at least five years by providing a minimum offense level of 17 for such offenders.

Before the First Step Act, only defendants in Criminal History Category (CHC) I (with no more than one criminal history point) could qualify for safety valve relief, and a base offense level of 17 therefore correlated with a guideline range of 24 to 30 months for all safety-valve eligible defendants. After the First Step Act, a safety-valve-eligible defendant can be in any CHC, and an offense level of 17 correlates with the following guideline ranges at each category: I (24–30 months); II (27–33); III (30–37); IV (37–46); V (46–57); and VI (51–63). See Commission commentary to amendments. See the United States Sentencing Commission Commentary to Amendment 817 at https://www.ussc.gov/guidelines/amendment/817

Finally, the amendment revises subsections (a)(1) and (a)(3) of § 2D1.1 to replace the term “similar offense” with the terms set forth in the First Step Act. Prior to this amendment, § 2D1.1(a)(1) provided for a base offense level of 43 “if the defendant is convicted under [any of six enumerated subsections], and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense.”
The amendment divides § 2D1.1(a)(1) into two subparagraphs, (A) and (B). Subparagraph (A), which references the four statutory provisions amended by the First Step Act, replaces the term “similar offense” with “serious drug felony or serious violent felony.” Subparagraph (B), which references the two provisions that were not amended, replaces the term “similar offense” with “felony drug offense.” See https://www.ussc.gov/guidelines/amendment/817

Amendment 816: Sexual Abuse Offenses

Amendment 816 responds to changes in the Violence Against Women Act Reauthorization Act and also addresses cases involving sexual abuse committed by law enforcement or corrections personnel against victims in their custody, care, or supervision.
Congress passed the Violence Against Women Act Reauthorization Act in 2022, establishing two new crimes. The first, codified at 18 U.S.C. § 250(a), prohibits any person from engaging in, or causing another to engage in, sexual misconduct, including certain attempts, while committing any civil rights offense. The second, codified at 18 U.S.C. § 2243(c), prohibits law enforcement officers from knowingly engaging in a sexual act with an individual under arrest or supervision, in detention, or in federal custody.

Separately, the Department of Justice urged the Commission to addresses concerns regarding the increasing number of cases involving sexual abuse committed by law enforcement or correctional personnel against victims in their custody, care, or supervision. As a result, the amendment increases the base offense level at § 2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts) for such cases from 14 to 22. It also addresses the presence of aggravating factors in sexual abuse offenses by providing a cross reference to § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) for cases where the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse. See https://www.ussc.gov/guidelines/amendment/816

Conclusion

Important changes to the federal sentencing guidelines are imminent. It is vital to consult with an attorney who understands the application of these changes and how they may affect your case. With decades of experience defending individuals charged with federal crimes, the legal team at Davis & Hoss is ready to help individuals with questions. Contact Attorney Lee Davis at lee@davis-hoss.com or by phone at 423-266-0605 for more information.

New Tennessee Criminal Laws 2023

New Tennessee Criminal Laws 2023

May 8, 2023 | Criminal Defense, Tennessee Criminal Legislation

The Tennessee State Legislature has wrapped up its 2022-2023 session. As expected, several new criminal laws are now in effect or will soon be in effect. This article will summarize some of these developments.

Admissibility of child forensic interviews

Effective April 6, 2023, Senate Bill 419/House Bill 557 expands the admissibility of a forensic interview to include certain statements made by a child under 18 years of age. Prior to this change, such videos were admissible only if the child was under 13 years of age.

This law also expands the content of the admissible forensic interview from comments made by a child describing sexual contact performed with or on the child by another to statements describing sexual or physically violent contact performed with or on the child by another or performed by a person with or on another and witnessed by the child. This law applies to all courts and at all stages of court proceedings if certain requirements related to the experience of the forensic interviewer are met.

Enhanced sentencing for especially aggravated kidnapping, aggravated rape, or rape

Effective July 1, 2023, Senate Bill 18/House Bill 5 requires that a person convicted of especially aggravated kidnapping, aggravated rape, or rape be sentenced within at least a Range II offense. In Tennessee, a Range II sentence for aggravated kidnapping or aggravated rape, both A felonies, is 25-40 years. A Range II sentence for rape, a B felony, is 12-20 years.

Effective January 1, 2024, this new law also expands the requirement to register as a sexual offender to all defendants convicted of a kidnapping offense, rather than only defendants convicted of kidnapping minors.

Criminal immunity to persons experiencing a drug overdose

Effective July 1, 2023, Senate Bill 256/House Bill 75 (considered a good Samaritan bill) offers immunity to those who call 911 to seek medical assistance for themselves or others due to drug overdoses. The law defines “seeks medical assistance” as accessing or assisting in accessing the 911 system; law enforcement or a poison control center; or providing care while awaiting the arrival of medical assistance.

Current law allows for immunity only to the person experiencing the overdose and applies only to those experiencing their first overdose. This bill will give prosecutors discretion to grant immunity to those experiencing subsequent overdoses as well.

Expunction of public records regarding implied consent violations

Senate Bill 361/House Bill 412 authorizes the expunction of public records regarding a driver’s alleged implied consent violation. In other words, a motor vehicle operator’s refusal to submit to breath and blood tests to determine alcohol or drug content may be expunged from an individual’s criminal record, under certain circumstances.

As with other felonies and misdemeanors, a person with an implied consent violation on their criminal record may apply for an expungement if the charge was dismissed, a no true bill was returned by a grand jury, or the person was arrested and released without being charged.

Tennessee Businesses Against Trafficking Program

Senate Bill 1212/House Bill 115 requires the Secretary of State to establish and implement a program designated as the Tennessee Businesses Against Trafficking Program to engage participating corporations and other private entities in voluntary efforts to identify, prevent, and combat human trafficking. Entities that participate in the program must adopt a zero-tolerance policy toward human trafficking, take measure to ensure that the business and its employees comply with the rules of the program, participate in training and public awareness campaigns, and enhance awareness of and encourage participation in the program.

Electronic monitoring devices for prisoners on work release

Effective January 1, 2024, Senate Bill 562/House Bill 452 requires a prisoner of a county workhouse or jail who is released from custody and allowed to leave the grounds to perform work (paid or unpaid) to use an electronic monitoring device at all times. It requires the employer or person utilizing the prisoner for the work to pay the costs of the monitoring service.

Penalty for destruction of critical infrastructure property

Effective July 1, 2023, Senate Bill 467/House Bill 482 enhances the punishment for attacks on critical infrastructure. This bill increases the punishment from a Class E felony to a Class C felony – when the damage is over $1000.

Treatment and transdermal monitoring device requirements for DUI offenders

Effective July 1, 2023, Senate Bill 328/House Bill 144 lowers from 25 to 17 the required number of days a person convicted of a second DUI must spend in jail before becoming eligible to participate in a substance abuse program.

This bill also requires a judge to order a person charged or convicted of a third or subsequent DUI or DUI related offense to wear a transdermal alcohol monitoring device for at least 90 days of continuous sobriety upon release on probation or on bail (unless the person’s criminal case ends before completion of this period).

Liability for individuals that provide cars to intoxicated persons

Effective July 1, 2023, House Bill 1198/Senate Bill 1318 creates a criminal offense for providing a motor vehicle to another person who the provider of the vehicle knows or should know is under the influence of an intoxicant or whose driver’s license has been suspended or revoked under certain circumstances. As written, a person who violates this law is subject to a sentence of a minimum of 48 hours incarceration.

Anti-drag law blocked through the end of May

A bill that has gained a lot of attention – Senate Bill 3/House Bill 9 creates an offense for a person who engages in an adult cabaret performance on public property or in a location where the adult cabaret performance could be viewed by a person who is not an adult.

A federal judge temporarily blocked the law from going into effect March 31, stating a temporary restraining order would apply for 14 days unless the court elected to extend it. That 14-day period would have expired Friday, April 14, but Judge Thomas L. Parker, with the U.S. District Court for the Western District of Tennessee, extended the temporary restraining order until May 26. A preliminary injunction hearing is scheduled for May 22.

Conclusion

With Tennessee’s criminal laws changing every year, it is important to consult with a knowledgeable criminal defense attorney. With decades of experience defending criminal charges in Tennessee and Georgia, the legal team at Davis & Hoss is ready to help individuals facing criminal allegations. Contact Attorney Lee Davis at lee@davis-hoss.com or by phone at 423-266-0605 for more information.

2023 Tennessee Driving Under the Influence (DUI) Update

2023 Tennessee Driving Under the Influence (DUI) Update

Apr 13, 2023 | Driving Under the Influence

2023 Tennessee Driving Under the Influence (DUI) Update

Tennessee driving under the influence (“DUI”) laws are likely to change again this summer, with several bills pending passage in the state legislature. This article will highlight some possible changes and provide a basic understanding of current DUI penalties/requirements.

Current DUI penalties in Tennessee

Although there are some exceptions, basic DUI penalties in Tennessee are outlined as follows:

Implied Consent – Refusal to submit to blood alcohol test
    • Revocation of driver’s license for 1 year (1st offense)
    • Revocation of driver’s license for 2 years (2nd offense)
    • Revocation of driver’s license for 2 years if crash resulted in bodily injury
    • Revocation of driver’s license for 5 years if crash resulted in a death

 

First Offense DUI
    • 48 hours up to 11 months/29 days in jail
      • .20 Blood Alcohol Concentration (BAC) or greater? Minimum jail time 7 consecutive days
    • License revocation for 1 year – restricted license may be available
    • Restitution paid to any person suffering personal injury or loss
    • $350-$1500 fine
    • Drug and alcohol treatment may be required at judge’s discretion
    • Ignition Interlock Device may be installed at offender’s expense

 

Second Offense DUI
    • 45 days to 11 months/29 days in jail
    • License revocation for 2 years – restricted license may be available
    • Subject to vehicle seizure/forfeiture
    • Restitution paid to any person suffering personal injury or loss
    • $600-$3500 fine
    • Drug and alcohol treatment may be required at judge’s discretion
    • Ignition Interlock Device installed at offender’s expense

 

Third Offense DUI
    • 120 days to 11 months/29 days in jail
    • License revocation for 6 years – restricted license may be available
    • Subject to vehicle seizure/forfeiture
    • Restitution paid to any person suffering personal injury or loss
    • $1100 to $10,000 fines
    • Drug and alcohol treatment may be required at judge’s discretion
    • Ignition Interlock Device installed at offender’s expense

 

Fourth DUI Offense
    • Class E felony
    • 1-6 years jail time with a minimum of 150 consecutive days served
    • $3,000 to $15,000 fine
    • License revocation for 8 years – restricted license may be available
    • Subject to vehicle seizure/forfeiture
    • Drug and alcohol treatment may be required at judge’s discretion
    • Ignition Interlock Device installed at offender’s expense

 

Fifth DUI Offense
    • Class D felony
    • 2-12 years jail time with a minimum of 150 consecutive days served
    • $3,000-$15,000 fine
    • License revocation for 8 years – restricted license may be available
    • Subject to vehicle seizure/forfeiture
    • Drug and alcohol treatment may be required at judge’s discretion
    • Ignition Interlock Device installed at offender’s expense

 

Sixth DUI Offense
    • Class C felony
    • 3-15 years jail time with a minimum of 150 consecutive days served
    • $3,000-$15,000 fine
    • License revocation for 8 years – restricted license may be available
    • Subject to vehicle seizure/forfeiture
    • Drug and alcohol treatment may be required at judge’s discretion
    • Ignition Interlock Device installed at offender’s expense

Current Ignition Interlock Requirements

With a few exceptions, Tennessee courts now order the installation and use of ignition interlock devices by those convicted of DUI. Tenn. Code Ann. § 55-10-417.  An ignition interlock device connects a motor vehicle ignition system to a breath-alcohol analyzer to prevent a car from starting if a driver’s blood alcohol level exceeds the calibrated setting on the device. Under Tennessee law, a breath alcohol content (BAC) of .02 or greater should prevent the vehicle from starting with the use of one of these devices and triggers the vehicle’s horn to blow and lights to flash until the ignition is stopped or there is a passed retest.

Violations of these interlock device rules are recorded by the provider and include: the engine being started without passing a breath test or while in a lockout state; (b) the user failing or refusing to take a rolling retest; (c) the user delivering a breath sample at or above the violation of .02; and (d) the user tampering with the device. Once five violations occur, the user must return for service within 72 hours or the device will lock and prevent the vehicle from starting. Tennessee Department of Safety Rule 1340-03-06-.05.

The company providing the interlock device is required to inspect the device approximately every 30 days and forward monitoring data to the Department of Safety including all information about any violations or evidence of non-compliance. All of the costs involved with these devices are at the expense of the DUI offender. Tennessee Department of Safety Rule 1340-03-06-.10.

Effective July 2022, these interlock device requirements expanded to most individuals charged with DUI and DUI-related offenses (not just those convicted). More specifically, this amendment provides that people charged with DUI, vehicular assault, aggravated vehicular assault, vehicular homicide involving the driver’s intoxication, or aggravated vehicular homicide—may be required to operate only a motor vehicle equipped with an ignition interlock device as a condition of bail.

Under this 2022 law, unless the court determines the requirement would not be in the best interest of justice and public safety, the use of an ignition interlock device is a mandatory condition of bail for persons charged with the aforementioned offenses if the alleged offense involved the use of alcohol and one of the following circumstances apply:

  • The offense resulted in a collision involving property damage;
  • a minor was present in the vehicle at the time of the alleged offense;
  • the defendant’s driver license has previously been suspended for a violation of the present law regarding breath and blood tests to determine alcohol or drug content of a motor vehicle operator’s blood; or
  • the defendant has a prior conviction of reckless driving, reckless endangerment, DUI of an intoxicant, vehicular assault, aggravated vehicular assault, vehicular homicide involving the driver’s intoxication, or aggravated vehicular homicide.

The new law requires the defendant to submit proof of installation of the device to the district attorney general within 10 days of being released on bail. If the court does not require the defendant to install such a device, the court must include in its order written findings as to why the requirement would not be in the best interest of justice and public safety. Tenn. Code Ann. § 40-11-118(d).

Effective in January 2023, the ignition interlock period of time restarts in full if the Department of Safety determines that the person removed the device. Also, if in the last 120 days of an interlock period and the department determines that a person has tampered with the device, failed to take a retest, or failed a test (and certain subsequent retests) within the last 120-days of the interlock period, the 120-day period starts again from the date of the violation. Tenn. Code Ann. § 55-10-425.

New Interlock Device Legislation

Effective January 1, 2024 House Bill 77/Senate Bill 259 requires all ignition interlock devices on vehicles to be equipped with GPS technology to “geotag” a vehicle’s location whenever an ignition interlock device is used to start a vehicle. This “geotag” will also be used when a skipped test occurs or when circumvention of the device is detected. This new legislation is aimed at helping law enforcement determine the proper jurisdiction in which the driver committed the violation.

Pending DUI-related Legislation in Tennessee

Treatment and Transdermal Monitoring Device Requirements for DUI Offenders

Senate Bill 328/House Bill 144 lowers from 25 to 17 the required number of days a person convicted of a second DUI must spend in jail before becoming eligible to participate in a substance abuse program.

This bill also requires a judge to order a person charged or convicted of a third or subsequent DUI or DUI related offense to wear a transdermal alcohol monitoring device for at least 90 days of continuous sobriety upon release on probation or on bail (unless the person’s criminal case ends before completion of this period). This set of bills has passed both houses of the Tennessee Legislature and is awaiting signature by Governor Lee.

Enhancing Minimum Sentences for Certain DUI Offenders

House Bill 587/Senate Bill 1055 aims to enhance minimum sentences for DUI offenders by lowering the BAC threshold from .20 to .15. Now, a person convicted of DUI first offense with a BAC level of .20 or higher shall serve a minimum of seven (7) consecutive days rather than just 48 hours. If this bill passes, that level will be reduced to .15. This bill is pending approval in both houses.

Boating Under the Influence (BUI) Penalties

House Bill 458/Senate Bill 720 authorizes courts to use the same sentencing alternatives for BUI as DUI. For example, transdermal monitoring devices, electronic monitoring with random alcohol or drug screening; GPS monitoring; and incarceration in an alternative facility.

This law also clarifies that law enforcement may seek search warrants to perform breath and blood tests of BUI suspects. Also, the law increases the suspension of boating privileges from 6 to 12 months for a BUI or BUI-related implied consent violation. This law also creates sentence enhancements related to the presence of minors in BUI cases. This bill is pending approval in both houses.

Liability for Individuals that Provide Cars to Intoxicated Persons

House Bill 1198/Senate Bill 1318 creates a criminal offense for providing a motor vehicle to another person who the provider of the vehicle knows or should know is under the influence of an intoxicant or whose driver’s license has been suspended or revoked under certain circumstances. As written, a person who violates this law is subject to a sentence of a minimum of 48 hours incarceration. This bill is pending approval in both houses.

Conclusion

With Tennessee’s DUI laws constantly changing, it is important to consider the date upon which the charge occurred and consult with knowledgeable attorneys. With decades of experience defending DUI charges in Tennessee and Georgia, the legal team at Davis & Hoss is ready to help individuals facing these allegations. Contact Attorney Lee Davis at lee@davis-hoss.com or by phone at 423-266-0605 for more information.

Tennessee Juvenile Law Update

Tennessee Juvenile Law Update

Mar 28, 2023 | Tennessee Criminal Legislation

Tennessee Juvenile Law Update: Efforts to Treat More Juveniles Charged with Crimes as Adults

A bill is working its way through the Tennessee General Assembly that would change the way the State of Tennessee treats juveniles charged with certain crimes.

Current Law

Presently in Tennessee, when a child is charged with a crime, the child is under the jurisdiction of the juvenile court system. There, the focus is on rehabilitation. In some cases involving certain serious crimes, a prosecutor can request that the juvenile court judge transfer the child to adult court where the focus is on punishment.

More specifically, a juvenile is now only eligible for a transfer if the child was:

(i) Less than fourteen (14) years of age at the time of the alleged conduct and charged with first degree murder or second degree murder or attempted first or second degree murder;

(ii) Fourteen (14) years of age or more but less than seventeen (17) years of age at the time of the alleged conduct and charged with the offense of first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated rape of a child, aggravated robbery, especially aggravated robbery, aggravated burglary, especially aggravated burglary, kidnapping, aggravated kidnapping, especially aggravated kidnapping, commission of an act of terrorism, carjacking, or an attempt to commit any such offenses;

(iii) Sixteen (16) years of age or more at the time of the alleged conduct and charged with the offense of robbery or attempt to commit robbery; or

(iv) Seventeen (17) years of age or more at the time of the alleged conduct;

Tenn. Code Ann. § 37-1-134(a)(1)(A).

If a prosecutor requests a transfer and the juvenile is eligible, a full hearing is then required wherein a juvenile court judge must determine whether transfer is appropriate. Such transfer is only appropriate if the court finds that there is probable cause to believe that the child committed the delinquent act, the child is not committable to an institution for the developmentally disabled or mentally ill; and the interests of the community require that the child be put under legal restraint or discipline. Tenn. Code Ann. § 37-1-134(a)(4).

In order to make the “interests of the community” determination, a juvenile court judge has broad discretion and considers the following factors involving both the nature of the crime and the child’s character and history:

  1. The extent and nature of the child’s prior delinquency records;
  2. The nature of past treatment efforts and the nature of the child’s response thereto;
  3. Whether the offense was against a person or property, with greater weight in favor of transfer given to offenses against the person;
  4. Whether the offense was committed in an aggressive and premeditated manner;
  5. The possible rehabilitation of the child by use of procedures, services and facilities currently available to the court in this state;
  6. Whether the child’s conduct would be a criminal gang offense, as defined in § 40-35-121, if committed by an adult; and
  7. Whether the child has a history of trauma or abuse, including, but not limited to, the child being a victim of a human trafficking offense as defined in § 39-13-314.

Tenn. Code Ann. § 37-1-134(b). Simply put, the juvenile court judge looks at the big picture and applies their training and expertise in working with children to determine whether the child is capable of rehabilitation or needs to be transferred to adult court.

Proposed Legislation

House Speaker Cameron Sexton has introduced a bill that would reverse the current process, taking away the discretion of juvenile court judges and sending children charged with certain crimes directly to adult court.

Under this proposed legislation, children accused of certain serious crimes would be immediately placed in the adult court system. The crimes are the same as those making a juvenile eligible for transfer now with two additions:

  • Transfer required for children aged 14 to less than 17 at the time of alleged aggravated battery when the victim is less than thirteen (13) years of age; and
  • Transfer required for children aged sixteen (16) years or more at the time of the alleged conduct and charged with any offense if a deadly weapon was used during the commission of the offense.

H.B. 1029, Amendment 4849, 113th Tenn. Gen. Assembly (2023), amending Tenn. Code. Ann. § 37-1-134(a)(1)(B).

The pending legislation then requires the criminal court judge to decide if the child remains in criminal court. The law, as drafted, mandates that the child be tried as an adult in criminal court if the criminal court finds probable cause to believe that:

  1. The child committed the delinquent act as alleged;
  2. The child is not committable to an institution for the developmentally disabled or mentally ill; and
  3. The interest of the community requires that the child be put under legal restraint or discipline.

H.B. 1029, Amendment 4849, 113th Tenn. Gen. Assembly (2023), amending Tenn. Code Ann. § 37-1-134(b)(1).

And, in considering the “interest of the community” the criminal court judge is only instructed to consider the nature of the crime itself and whether the child has been a victim of human trafficking. Otherwise, the history and characteristics of the child (and whether they are candidates for rehabilitation) are not considered. More specifically, criminal court judges are only required to consider:

  1. Whether the offense was against a person or property, with greater weight in favor of a determination that the child shall be tried as an adult in criminal court if the offense was against a person;
  2. Whether the offense was committed in an aggressive and premeditated manner;
  3. Whether the child’s conduct would be a criminal gang offense, as defined in 40-35-121, if committed by an adult; and
  4. Whether the child’s history demonstrates the child is, or has been, a victim of human trafficking.

H.B. 1029, Amendment 4849, 113th Tenn. Gen. Assembly (2023), amending Tenn. Code Ann. § 37-1-134(b)(2). So, while the criminal court judge could theoretically transfer a case to juvenile court, such transfers would be rare.

Reasons for the Proposed Change

As for why this drastic change is being proposed, Speaker Sexton said he is concerned juveniles do not have penalties as harsh as adults and said he believes he is seeing an increase in crimes committed by juveniles statewide1. However, no statewide statistics have been provided and the proponents of the bill appear instead to be focused on Memphis.

Representative Mary Littleton (Dickson) presented the bill on behalf of House Speaker Sexton to the Criminal Justice Subcommittee on March 14, 2023 and relied wholly on a set of statistics out of Shelby County. According to her, in 2021 the juvenile system in Shelby County saw 2,507 teens — 520 of whom were charged with a second offense, and “all the way down to the 10th” offense. Representative Littleton stated 123 teens were charged with a 10th offense.2

At the subcommittee meeting, Representative Joe Towns, Jr. (Memphis) asked for juvenile offender data from other areas of the state and Rep. Littleton had none. When asked, Rep. Littleton offered no information about juvenile court programs that were working well either.

Response & Concerns

First-Hand Account: Juvenile Justice Advocate Testifies Against Passage

At the March 14th subcommittee hearing, Cyntoia Brown testified against its passage. Now a juvenile justice advocate, Ms. Brown spoke about her own experience after she was charged with murder and robbery as a 16-year-old in 2004. At the time, she told the court she was being sex trafficked. Ms. Brown was transferred to be tried as an adult.

“I was one of those kids. I was transferred to be tried as an adult. I was removed from the juvenile justice center and sent to an adult jail and I had to spend two years in solitary confinement because whenever a juvenile is sent to a facility they have to be kept away site and sound from all of the adults. The only option that the sheriffs really have is to place them in solitary confinement, so for 23 hours a day I was kept in a cell, and most days the only sunlight I saw was through a window in a wall and the only human interaction I had was from a guard who was bringing me my food tray” explained Ms. Brown.3

Ms. Brown explained that she had several mental breakdowns as a result of solitary confinement and was unable to participate in her own defense. And, Ms. Brown talked about the lack of education juveniles receive behind bars in adult facilities, as she pointed back to her time behind bars and how her lawyer would drop off educational materials.

“[A] child who’s kept in the juvenile system can have opportunities to progress can have an opportunity to be transformed, and retrained and become a benefit to society, but a child who is placed in an adult system is pretty much just set on a downhill path,” explained Brown.4

When asked about her time in the juvenile court system twenty years ago, Ms. Brown testified that the Department of Children’s Services offered very few services. She is now more optimistic under the leadership of Director Quinn. However, Ms. Brown encouraged more investment on the juvenile justice side stating that current juvenile justice programs are effective if they are funded properly.

Juvenile Court Judges’ Expertise Overlooked

At the March 14th subcommittee meeting, Representative Gloria Johnson (Knoxville) expressed her concerns about the proposed change and stressed that juvenile judges are the most trained and qualified and “the best people to hear juvenile cases.”

Similarly, Kathy Sinback, director of the Tennessee chapter of the ACLU, has stated that the pending legislation would take the discretion away from those who have the most expertise – juvenile court judges:

“When you take away all of the considerations that need to go into the transfer decision and you make it just based on the charge, you are not looking at what their likelihood is of being successful in the future and the best way to help them become contributing adults,” Sinback says.5

Overload of Adult System

Rep. Johnson also expressed concern about the burden these juvenile cases would place on the adult court system, which is largely backlogged given the delays over the last few years due to COVID-19. The ACLU has expressed similar concerns. Under the bill, criminal court judges who see these cases would have the option to transfer kids down to the juvenile court, but Sinback says it would be rare. As a result, she is concerned that the change could overload adult criminal courts. 6

Lack of Facilities to House Juveniles

At present, juveniles that are transferred to adult court are often held in segregated areas of adult facilities. However, many adult facilities are facing overcrowding issues. When asked about where these juveniles would be housed, Rep. Littleton had no concrete plans or information. When asked about how these larger population of juveniles in adult facilities would be educated, Rep. Littleton had no concrete plans or information for this either.

Fiscal impact unknown

When asked about the fiscal impact of this bill, Representative Littleton had no information for the subcommittee. And, there seemed to be confusion as to whether any fiscal impact study had been done at all.

Conclusion

As of today, the bill has passed the House Subcommittee but has several steps to go before arriving on Governor Lee’s desk. If it passes, this change in law will have lasting impacts on children and families. If you or a family member is charged with a crime in the juvenile court system, it is important to consult with skilled attorneys. With decades of experience working with children and families in the juvenile court system, the legal team at Davis & Hoss is ready to help. Contact Attorney Lee Davis at lee@davis-hoss.com or by phone at 423-266-0605 for more information.

Reference:

  1. https://www.wbir.com/article/news/local/lawmakers-talk-juvenile-justice-proposals/51-e1bee0b3-c12a-4cae-aa47-4a74c29d6d3a
  2. https://www.wkrn.com/news/tennessee-politics/tn-bill-aimed-at-sending-teens-straight-to-criminal-court-progresses-forward-despite-pushback/
  3. https://www.wkrn.com/news/tennessee-politics/tn-bill-aimed-at-sending-teens-straight-to-criminal-court-progresses-forward-despite-pushback/
  4. https://www.wkrn.com/news/tennessee-politics/tn-bill-aimed-at-sending-teens-straight-to-criminal-court-progresses-forward-despite-pushback/
  5. https://wpln.org/post/a-new-bill-would-funnel-more-kids-into-adult-court-advocates-say-it-would-cause-damage-that-cant-be-undone/
  6. https://wpln.org/post/a-new-bill-would-funnel-more-kids-into-adult-court-advocates-say-it-would-cause-damage-that-cant-be-undone/

 

The Tennessee Abortion Law Update: What You Need to Know Now

The Tennessee Abortion Law Update: What You Need to Know Now

Mar 14, 2023 | Tennessee Criminal Legislation

Since the drafting of our last Tennessee abortion law update, efforts to modify one of the strictest abortion bans in the nation have failed or stalled.

  • House Bill 1440, which made exceptions for rape and incest in certain situations, was withdrawn on February 23, 2023.
  • Senate Bill 885, which made clear that “abortion does not include the use of contraceptives, including hormonal birth control, intrauterine devices, or emergency contraceptives,” failed in the Senate Judiciary Committee on February 28, 2023.
  • House Bill 883, a bill that would remove the affirmative defense requirement for doctors who perform abortions in emergency situations, has been put on hold. State Representative Esther Helton-Haynes, has delayed consideration of the bill until March 22, 2023. According to the Chattanooga Times Free Press, Rep. Haynes claims to have enough votes to pass the bill, but wants to wait until the Senate Judiciary Committee hears its companion bill, Senate Bill 745, on March 13, 2023. Senate Bill 745, sponsored by State Senator Richard Briggs, was originally delayed until this mid-March date in order to get advice from Attorney General Jonathan Skrmetti.

 

With the Tennessee Abortion Ban undergoing so many attempted changes, it is important to consult with experienced attorneys should you have a question or concern regarding this law. With decades of experience working with prosecutors, law enforcement, medical professionals, and the state legislature, the legal team at Davis & Hoss is ready to help individuals facing potential allegations under this law or those that simply have questions. Contact Attorney Lee Davis at lee@davis-hoss.com or by phone at 423-266-0605 for more information.