On the Unconstitutionality of Jury Instructions in Tennessee’s Death Penalty

by David D

THE STATE OF TENNESSEE has had its current death penalty statute since 1977. It has been amended six times but it has not been declared unconstitutional since 1979. Within that period of time, the State has executed six men, one by electrocution and five others by lethal injection.

Lawmakers in Tennessee insisted on having studies done on its death penalty statute and had suggested that the use of the death penalty would reduce jail and prison overcrowding as early as the 1990s and as a long-term effect there would be a reduction in crime in society. However, as public dollars continue to be funneled into a 30-year-old system, six men have been executed, jails and prisons are still overcrowded and crime in society has not been reduced.

Tennessee, with its current death penalty statute, is no better legally than when that statute was enacted in 1977. The fact is Tennessee’s death penalty system hasn’t reduced or prevented anything other than public money from being used in other needed departments of the State Government.

Aside from the immoral and unethical aspect of Tennessee’s death penalty statute, Tennessee citizens are unaware of the true cost of the death penalty. The fact that the death penalty in Tennessee has been in need of a major reconstruction since the early 1990s.

It is also a fact that Tennessee Code Annotated 39-2402 is the original 1977 death penalty statute, and is the origin of all statutory schemes of the death penalty in Tennessee.

According to several court rulings, the Tennessee Court justices have ruled specifically that the 1977 death penalty statute 39-2402 has been “rewritten, partly rewritten, or totally abandoned because it is flawed, broken and unconstitutional in nature.” These rulings, such as State vs. Edward Mack Brown (Tenn. 1992), State vs. Donald Middlebrooks (Tenn. 1992) and State vs. Gregory Alan Gilliam (Tenn. Cr. App. 1995), make it unclear whether the Tennessee lawmakers have mandated that its State courts enforce the above rulings regarding cases which have been tried under the 1977 death penalty statute. If not, then it is clear why problems continue to mount under the 1977 death penalty statute.

The State’s original death penalty bill (Senate Bill No. 82 Public Act 1977, Chapter 51, referred to as T.C.A. 39-2404) states in subsection six that:

In the event that any provision of this act of application thereof to any individual or circumstance is held to be invalid or unconstitutional by the Tennessee Supreme Court or a federal court, so permanently preclude a sentence of death as to that individual, the court having jurisdiction over such individual previously sentenced to death shall cause such individual to be brought before the proper court which shall sentence such person to imprisonment for life.

However, with the execution of six men and the courts’ rulings unknown to the public, does this say that Tennessee politicians would be violating any of the laws of this State by the use of the 1977 death penalty?

The fact is some Death Row inmates are challenging Tennessee’s 1977 death penalty statute, to the effect that it violates Article 2 Section 17 of the Tennessee Constitution. This Article of the Constitution states:

Bills may originate in either House; but may be amended, altered, or rejected by the other.

No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amen former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.

However, the original legislative Senate Bill No. 82 Public Act 1977, Chapter 51, which is Tennessee’s death penalty scheme, contains both common law and felony murder as a part of the bill, which constitutes a violation of Article 2 Section 17 of the Tennessee Constitution.

To overcome this violation, the State employed a method of process called codification. The State considers this process as a cure all process, one that cures any violation that a statute has inflicted upon any individual who challenges its statutes.

This process changes the codified numbers used by the legislature when enacting bills into law, also making a systematic method used in the laws of a given jurisdiction. In other words, the method has no effect on the original language of the bill used by the legislature to enact such law, thereby leaving the language of the bill unchanged and still in violation of the State Constitution.

Tennessee citizens need to ask this question: if the State cure all codification process cures any and all violations against its statutes, then how could our Tennessee Supreme Court and our Tennessee Court of Appeals rule against the statute in the early 1990s in State vs. Edward Mack Brown (Tenn. 1992) and State vs. Gregory Alan Gilliam (Tenn. 1995)?

Furthermore, Tennessee citizens are unaware that the 1977 death penalty statute became even more flawed and broken some months after its enactment when an unconstitutional jury instruction was created and developed by the Tennessee Committee on Pattern Jury Instruction (Tennessee Pattern Jury Instruction 20.02 [Homicide] First Degree Murder (in Perpetration of a Felony), referred to hereafter as T.P.I 20.02). These instructions, when used, violated every person’s rights who had been tried and convicted of first degree murder. These instructions were developed in September 1978 by a committee solely comprised of State Trial Court Judges. It is unfair to have State Judges acting in dual roles as both creator of legislation and then overseer of said legislation in Tennessee trial courts. This is even more egregious considering the fact that these T.P.I. 20.02 have never been enacted by the Tennessee General Assembly, and have had no approval of the Tennessee Supreme Court (State vs. Willie James Martin (Tenn. 1985).

These same instructions have also been used to relieve the State prosecuting attorneys from their burden of proving the elements which constitute the crime of first degree murder. Even though the 1978 T.P.I 20.02 instructions were re-drafted in 1994-1995 to Tennessee Pattern Instruction 7.03(b) First Degree Murder (Killing in Perpetration of Other Crimes) (For Offenses Committed on or after July 1, 1995), there are still similar constitutional flaws involved.

The sole purpose for the creation of the 1978 T.P.I. 20.02 instructions was to relieve the prosecution of their constitutional duty to prove the elements of first degree murder. After 1978 the prosecution did not have to prove the intention of a person to kill another, all the prosecution had to prove was that the defendant committed any felony and some person died during the commission of the crime, whether by accident of not, and whether or not the person was even the one who actually caused the death. It has to be assumed that the purpose of Tennessee’s 1977 death penalty statute and the T.P.I. 20.02 instructions were for political gain and not for the rights of the citizens of this State.

The citizens of this State should question whether members of this State Government (past and present) have deliberately allowed these implementations to be administered as if constitutionally passed laws, a decision that has cost this State millions of dollars in litigation fees in death penalty cases. Citizens need not continue to ask themselves whether past and present politicians and judges caused this State to convict and sentence individuals to death in violation of this State and United States Constitution, because it’s obvious they have. Further, between 1977 and 1978 a case can be made that politicians and judges conspired to allow individual rights to be violated by the use of T.C.A. 39-2402 and the use of T.P.I 20.02 jury instructions, which has never been approved by the Tennessee General Assembly or the State’s court system.

It is fair to say there is a rule of law that has not been respected. Legislatures, judges, prosecuting attorneys, and even defense attorneys play crucial roles in the judicial system for the citizens of this State. However, when these role players use their position for personal and political gain, or remain quiet, flawed and broken statutes are not all that this State should be concerned with.

All of these players, even the defense attorneys who remain quiet, are part of the problem. They know they have a responsibility to act.

Where a committee of people, whether of the legislative branch or of the judicial branch, are formed and justified in being assembled, and are sworn to uphold the Constitution of this State, the citizens expect that oath to be honored.

This committee did not uphold their sworn duty contained in the Tennessee Constitution because this committee has created an unconstitutional death penalty jury instruction. It is the right and the responsibility of the citizens of the State of Tennessee to ensure that fair and just laws are enacted and administered b all official parties involved in the judicial process.

I implore all who are interested in justice and fairness to help correct this unconstitutional and inhumane situation in Tennessee. Help make the politicians enact constitutionally fair legislation.


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