A Tennessee man could remain in prison for years, even though a judge and prosecutor have dismissed the charges against him

The following opinion by Radley Balko was published by the Washington Post on September 20, 2017.

From the Tennessean, here’s a crazy story about a man who looks to be doomed to years in prison, despite the fact that the charges that put him there have been dropped. You can thank the state’s parole board.

    A judge and prosecutor dismissed the criminal allegations against John Leon Smith, but in the eyes of the Tennessee Board of Parole he’s still guilty.

    The man will remain in prison until next year at least — maybe until 2026 …

    … Smith served about half of a 40-year prison sentence for a violent armed robbery and threatening to kill workers at a Nashville restaurant in 1992. Smith fired several shots, which wounded one worker, and as he fled from police, fired shots at officers, according to appeals court records.

    “I was drinking and drugging and it cost me my life,” he said. “I threw it away in 30 minutes.”

    He was released on parole in October 2013, according to state records.

    Seventeen months later he was arrested on two felonies, alleging possession of marijuana and a weapon, court records show. At the time, Smith lived at a North Nashville home with two other people.

    Because of his criminal history, Smith wasn’t supposed to have guns.

    Court records and transcripts say undercover police intercepted a UPS package with nearly 8 pounds of marijuana inside and delivered it to the home, where Smith answered the door. About 30 minutes later, another man arrived and tried to leave with the package before he was arrested, according to a transcript of one detective’s testimony.

    Officers later found a handgun in furniture in Smith’s bedroom and three rifles and a shotgun in a separate closet, records say.

    A Nashville judge dismissed the gun charge two weeks later after hearing testimony from the homeowner that Smith did not know the guns were in the home and the handgun belonged to someone else, according to a court transcript.

    In March 2016, a year after Smith’s arrest, prosecutors dismissed the other charge against Smith — the drug crime — after the man who claimed the package of pot pleaded guilty, court records show.

    “Your case is dismissed,” a judge told Smith, according to the transcript. “That’s the end of that, so, for you.”

The problem: Smith’s arrest was a violation of his parole. Such violations can send him back to prison. It doesn’t matter that the charges were dropped. And the ultimate arbiter of whether Smith violated his parole isn’t the judge or prosecutor, but the Tennessee Board of Parole. And that group of seven people, all appointed by the governor, has decided to keep Smith in prison. Bizarrely, the Tennessee legislature has even passed a law that should apply to cases like Smith’s. But the parole board decided, unilaterally, that the law isn’t retroactive.

This isn’t the first time the Tennessee Board of Parole has come under criticism. Here’s an op-ed, also in the Tennessean, from May:

    In 1978, Lawrence McKinney was sentenced to 100 years in prison for crimes he didn’t commit.

    He could have expected to serve every bit of it, if not for the work of Memphis attorney Lorna McClusky and the Innocence Project, among others.

    He was released after serving 31 years and given $75.

    Mr. McKinney didn’t commit the crime and pled not guilty to it. He maintained his innocence and turned down offers for a plea bargain.

    Yet, after 31 years of wrongful incarceration, the Tennessee Board of Parole has the gall to want us to believe that it was Mr. McKinney’s release that was the mistake.

    Media reports described a Board of Parole hearing to discuss McKinney’s case, after he had been released, that had the feel of a trial. McKinney was grilled about his conviction, which, again, had already been vacated and charges dismissed.

    One board member seemed to reject conclusive DNA evidence. To add insult to injury, the same board member flat-out declared that McKinney committed the rape in 1977.

    “[W]hen you look at the record in its entirety…what is clear and convincing to me is that Mr. McKinney did commit…the crime of rape in 1977,” he said.

    What’s more, arguably this kind of alternative reality seems to be par for the course for the leadership of the Board of Parole.

When recently asked about another case of Robert Polk — a prisoner wrongfully held in prison for two years partly because the Board of Parole did not hold a timely hearing — the leader of the board reportedly said that the wrongful incarceration had nothing to do with the board or his leadership.

As noted, the board considers clemency and exoneration petitions in addition to parole. Exonerees must be declared innocent by the governor in order to be compensated, and most governors won’t exonerate without the board’s recommendation. Tennessee has exonerated just two people since 2000, and only one received compensation.

Members of the parole board are appointed to six-year terms and make around $100,000 per year. It isn’t made up of judges or retired judges. The appointees are largely political. Last year, for example, Gov. Bill Haslam appointed two new members to the board. Both are best known for being related to prominent state Republicans. One, Zane Duncan, is a former lobbyist for a Kentucky railroad company … and son of a GOP congressman.  The other, Roberta Kustoff, is a former tax attorney and wife of Rep. David Kustoff (R-Tenn.).

The makeup of the rest of the board is just as puzzling. The current chairman, Richard Montgomery,  is a former state legislator with no criminal justice background. Gary Faulcon is a 25-year police officer. Tim Gobble is a former cop, Secret Service agent and chief deputy of a sheriff’s department. Finally, Barrett Rich is a former state trooper and three-term Republican in the state legislature. Gay Gregson is at least from outside of law enforcement. She worked for more than 20 years in special education and has won community service awards in West Tennessee. She was also an outspoken supporter of Haslam during his campaign.

These are the people who decide the fate of Tennessee prisoners up for parole — and who advise the governor on clemency, pardons and exonerations. They’re mostly former cops and former politicians. There are no psychiatrists or social workers. There are no criminal justice academics, experts in prisoner rehabilitation, or — God forbid — defense attorneys. According to the board’s annual report for fiscal year 2015-2016, it considered a whopping 16,338 parole hearings that year. Among its “accomplishments” for that year, the board notes that it …

• “Planned the 13th annual Tennessee Season to Remember event honoring homicide victims, in cooperation with other state criminal justice agencies.”
• “Honored 12 members of the [Board of Parole] staff with awards for reaching milestones in state service.”
• “Planted eleven trees in cities across the state to honor victims of crime, and honored victim advocates for their work.”

There’s nothing wrong with honoring victims of crime, of course. But there are also no “accomplishments” listed as prominently to suggest that the parole board puts an equal value on redemption, rehabilitation or reentry.

Similarly, though the report notes how many applications the board reviewed and how many trees it has planted in honor of crime victims, and goes into great detail about the services it provides to those victims and their families, it has no information about those people who were granted parole, or what services the board provides to help them with the transition.

The board, then, operates not as an arbiter of an inmate’s rehabilitation, remorse and possible contribution to society, but as a law enforcement agency, and a particularly political one at that.