The Tennessee General Assembly will need to return to the drawing board if it wants to be sure criminal gang members receive some type of enhanced sentence if they commit illegal acts as part of gang activity.
On Thursday, the Tennessee Court of Criminal Appeals released a decision in a Knox County case in which it determined that two sections of the state's gang enhancement statute, 40-35-121(b), are unconstitutional.
"[A]lthough we sympathize with the State's argument because it is amply apparent that the underlying offenses in this case were gang-related," Judge Timothy L. Easter said, writing for the court, "we refuse to read a nexus requirement into the statute to eliminate its constitutional shortcomings. We respect the General Assembly's efforts to combat the scourge of criminal gang activity in our state, but it is not within our authority to rewrite this statute."
The decision said the constitutional shortcomings in the statute violate the Due Process Clause of the 14th Amendment.
The appeals court judges did not find the unconstitutional sections of the gang enhancement statute changed the convictions of the four persons involved, so it sent the case back to the trial court only for modifications of judgments and a new sentencing hearing.
Chattanooga Police Chief Fred Fletcher said Friday the city's Violence Reduction Initiative (VRI) was never conditioned on the use of the gang enhancement statute in question but only seeks the higher end of lawful sentencing range "because the defendant's gang has murdered someone or is the most violent group in town."
Hamilton County Attorney General Neal Pinkston has long maintained that "it would be unethical of him to single out a particular defendant based on gang affiliation," which is not against the law.
The Knoxville decision left in place the portion of the statute in which law enforcement officers can build cases that show crimes are committed in an effort to further gang activity.
As we have suggested previously, we believe the complicated line that must be trod with the arrest and prosecution of criminal gang members requires a much closer working relationship between law enforcement officials and the district attorney's office.
Both sides say they are willing to further that relationship, but progress appears stagnant.