IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE TWENTIETH JUDICIAL DISTRICT

PART __ AT NASHVILLE

JACOB DAVIS,

Petitioner,

vs.

TENNESSEE DEPARTMENT OF CORRECTION and HERBERT SLATERY, Tennessee Attorney General

Defendants.

)

Civil Action No.: ____________

)))))))))))))

Complaint for Declaratory Judgment

INTRODUCTION

1. This Complaint raises several constitutional and statutory challenges to Tenn. Code Ann.

§ 40-35-501, under which Petitioner Jacob Davis’s parole eligibility is determined. Mr.

Davis asserts that, with sentencing credits, he should be eligible for parole consideration

after serving 25 years on his life sentence. As currently interpreted by the Tennessee

Department of Corrections (the “TDOC”), Mr. Davis can only be considered for parole

after serving 51 years, which does not meaningfully differ from a life without parole

sentence. However, the TDOC’s interpretation must fail because the only minimum

sentence set out in the governing statute provides for a 25 year minimum sentence.

Moreover, to read the statute as the TDOC does would result in a litany of issues, not

least of which is that, given the decreased life expectancy of persons confined to prison, a

51 year sentence is the functional equivalent of a life without parole sentence. If there is

a permissible statutory sentence of life without parole, then logic would dictate that the

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other species of a life sentence contemplates parole. The legislature could not have

intended two functionally identical life sentences for the same crime – both effectively

precluding parole – as the jury would not have selected a life sentence if it had intended

to impose a life without parole sentence. Further, if read to require a 51 year minimum

sentence the statute would be void for vagueness, it would be invalid under both the

Tennessee and U.S. Constitutions, would violate Tennessee statute and would render Mr.

Davidson’s conviction improper. Because Mr. Davis was not sentenced to life without

the possibility of parole, the only remaining lawful sentence for his murder conviction is

life with eligibility for parole consideration after he serves a minimum of 25 years in

prison.

2. On January 14, 2015, Mr. Davis filed an Inmate Request with the TDOC, requesting that

the TDOC recalculate his sentence and parole eligibility date under Tenn. Code Ann.

§ 40-35-501. Inmate Request, Dated January 14, 2015. On January 23, 2015, 1 the

Record Office responded, “Effective 7-1-95, violent offenses committed on or after 7-1-

95 (your offense date is 5-19-98) and receive a life sentence must serve 60 years before

parole eligible, with credits sentence can reduce no less than 51 years. Your current RED

[Release Eligibility Date] is 3-28-2050.” Record Office Response, Dated January 23,

2015.

3. On May 4, 2015, Mr. Davis filed a Petition for a Declaratory Order with the TDOC

pursuant to Tenn. Code Ann. § 4-5-223. Petition for Declaratory Order, dated May 4,

2015. This petition was denied on May 18, 2015 on the basis that “[t]he Department is

required to obey the judgment orders as they are received from the court of jurisdiction

and we have.” TDOC Petition Denial, dated May 18, 2015. Having exhausted his 1 While the response is dated January 23, 2015, Mr. Davis did not receive the response until March 2015.

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administrative remedies, Mr. Davis now brings this suit for declaratory judgment

pursuant to Tenn. Code Ann. § 4-5-225 and § 29-14-102 to contest the legal validity or

applicability of a statute, rule or order of the TDOC. Mr. Davis is a person who is

directly affected by certain statutes, rules and orders given that he is under the

jurisdiction of the TDOC having been imprisoned for 17 years, pursuant to Tenn. Code

Ann. § 39-13-204(a) and Tenn. Code Ann. § 40-35-501.

4. In 1989, the Tennessee General Assembly enacted Tenn. Code Ann. § 40-35-501

regarding the calculation of parole eligibility and requiring that those serving life

sentences serve 60% of 60 years prior to consideration for parole, less sentence credits.

As amended on July 1, 1993, § 40-35-501(h)(1) provides that “[r]elease eligibility for

each defendant receiving a sentence of imprisonment for life for first degree murder shall

occur after service of sixty percent (60%) of sixty (60) years less sentence credits earned

and retained by the defendant, but in no event shall a defendant sentenced to

imprisonment for life be eligible for parole until the defendant has served a minimum of

twenty-five (25) full calendar years of the sentence . . . .” Under § 40-35-501(h)(1), a

defendant would be eligible for parole after serving 36 years, 60% of 60 years, with a

possible reduction such that the defendant would serve a minimum of 25 years based on

the accumulation of sentencing credits.

5. On July 1, 1995. the Tennessee General Assembly enacted Tenn. Code Ann. § 40-35-

501(i)(1) regarding the calculation for parole eligibility of a series of offenses enumerated

in subdivision Tenn. Code Ann. § 40-35-501(i)(2) of the statute, including “[m]urder in

the first degree.” The statute provides that “[t]he person shall serve one hundred percent

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(100%) of the sentence imposed by the court less sentence credits earned and retained,”

with a maximum allowable reduction of 15% for sentencing credits earned.

6. On July 29, 1999, Mr. Davis was found guilty of first degree murder, reckless

endangerment with a deadly weapon, and carrying or possessing a weapon on school

property with the intent to go armed. The crimes for which he was convicted occurred on

May 19, 1998, six months after Mr. Davis’s eighteenth birthday. He was sentenced to

life with the possibility of parole pursuant to Tenn. Code Ann. § 39-13-204(a) and Tenn.

Code Ann. § 40-35-501.

7. Because the only mandatory minimum term of years for a life sentence in the statute

governing parole eligibility is 25 years, Mr. Davis requests that this Court declare his

rights, status, and other legal relations regarding the calculation of his sentence so that he

may be eligible for parole after serving the 25-year sentence provided for by § 40-35-

501(h) (assuming the requisite good time credits have been earned and retained). Should

the Court attempt to give effect to both sub-sections (h) and (i) of the statute, it should do

so to provide that parole eligibility is available to those serving life sentences after 31.5

years (or 85% of a 36 year sentence).

8. Further, the petition asserts that if Tenn. Code Ann. § 40-35-501 is not interpreted in the

manner set forth above, it must be found void for vagueness.

9. Further, as interpreted by the TDOC, Tenn. Code Ann. § 40-35-501(i)(1) violates Article

II of the Tennessee Constitution.

10. Further, Tenn. Code Ann. § 40-35-501 violates Mr. Davis’s constitutionally protected

liberty interest in his parole eligibility.

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11. Further, Tenn. Code Ann. § 40-35-501 violates the proportionality requirement of the

Eighth Amendment of the U.S. Constitution.

12. Further, the magnitude of costs associated with implementing the TDOC’s interpretation

of Tenn. Code Ann. § 40-35-501 are beyond the scope of those considered by the General

Assembly, such that the bill fails to conform with the fiscal note requirements under § 3-

2-107.

13. Finally, if the requirement to serve a minimum of 51 years were the correct interpretation

of Tenn. Code Ann. § 40-35-501, Mr. Davis’s conviction would be improper based on the

trial court’s failure to instruct the jury that a life sentence carries with it a minimum 51

year period of incarceration.

14. Given the limited scope of this proceeding, Mr. Davis only challenges the date when he

will be eligible for parole.

PARTIES

15. Petitioner, Jacob Davis, is an individual of the full age of majority, is domiciled in

Tennessee and resides in Turney Center Industrial Complex located in Only, Tennessee.

He was found guilty of first degree murder, reckless endangerment with a deadly

weapon, and carrying or possessing a weapon on school property with the intent to go

armed on July 29, 1999 in the Circuit Court for Lincoln County, Tennessee in case

number S9800087. Mr. Davis has been sentenced to life with the possibility of parole

pursuant to Tenn. Code Ann. § 39-13-204(a) and Tenn. Code Ann. § 40-35-501 as well

as one year each for the reckless endangerment and carrying a weapon on school property

convictions, to run concurrently with his life sentence.

16. Mr. Davis has petitioned the TDOC for a declaratory order, which was denied, and thus

Mr. Davis has exhausted his administrative remedies. This suit for declaratory relief

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pursuant to Tenn. Code Ann. § 29-14-102 and the Uniform Administrative Procedures

Act, § 4-5-2252 was filed within the requisite deadline following the TDOC’s denial of

Mr. Davis’s petition for declaratory judgment. Mr. Davis was arrested on May 19, 1998

and has been in custody ever since.3 Mr. Davis has been and continues to live under the

supervision of the TDOC, thus he is under the jurisdiction of the TDOC. Tenn. Code

Ann. § 4-6-102. Defendant TDOC is sued, pursuant to § 4-5-225, as the relevant agency

enforcing Mr. Davis’s sentence, which denied Mr. Davis’s request for a declaratory

order. Defendant, Herbert Slatery III, is sued in his official capacity as Attorney General

of the State of Tennessee. The Attorney General is a proper party for a declaratory

judgment action. See Peters v. O’Brien, 278 S.W. 660 (Tenn. 1925). Furthermore, the

Attorney General is a mandatory party. See Waters v. Farr, 291 S.W.3d 873, 880 n.8

(Tenn. 2009).

2 Tenn. Code Ann. § 29-14-102 provided in its entirety states:

(a) Courts of record within their respective jurisdictions have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. (b) No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. (c) The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.

Tenn. Code Ann. § 4-5-225 provided in its entirety states: (a) The legal validity or applicability of a statute, rule or order of an agency to specified circumstances may be determined in a suit for a declaratory judgment in the chancery court of Davidson County, unless otherwise specifically provided by statute, if the court finds that the statute, rule or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the complainant. The agency shall be made a party to the suit. (b) A declaratory judgment shall not be rendered concerning the validity or applicability of a statute, rule or order unless the complainant has petitioned the agency for a declaratory order and the agency has refused to issue a declaratory order. (c) In passing on the legal validity of a rule or order, the court shall declare the rule or order invalid only if it finds that it violates constitutional provisions, exceeds the statutory authority of the agency, was adopted without compliance with the rulemaking procedures provided for in this chapter or otherwise violates state or federal law.

3 Mr. Davis was held in Lincoln County Jail following his arrest for a year and a half until the time of his conviction. Following his conviction in July 1999, Mr. Davis entered a TDOC prison and has continued to be in the custody of the TDOC since then.

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JURISDICTION

17. This Court has jurisdiction to enter a Declaratory Order. Tenn. Code Ann. § 4-5-225

provides that “[t]he legal validity or applicability of a statute, rule or order of an agency

to specified circumstances may be determined in a suit for a declaratory judgment in the

chancery court of Davidson County, unless otherwise specifically provided by statute, if

the court finds that the statute, rule or order, or its threatened application, interferes with

or impairs, or threatens to interfere with or impair, the legal rights or privileges of the

complainant.” A declaratory judgment may be rendered concerning the validity or

applicability of a statute, rule or order because the complainant here has petitioned the

agency for a declaratory order and the agency has refused to issue a declaratory order.

Tenn. Code Ann. § 4-5-225 (b).

STANDING

18. Mr. Davis has standing to bring this declaratory judgment action because he faces a

“distinct and palpable injury,” caused by the adverse party which can be redressed by a

favorable decision of the court. Metro. Air Research Testing Auth., Inc. v. Metro. Gov’t

of Nashville and Davidson County, 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992) (internal

citations omitted). Mr. Davis has a fundamental interest in having the validity and

applicability of § 40-35-501 and his rights and privileges thereunder adjudicated.

19. Mr. Davis was sentenced to life imprisonment with the possibility of parole under § 40-

35-501. As interpreted by the TDOC, Mr. Davis must serve a minimum of 51 years

before he is eligible for parole. However the only mandatory minimum provided by the

statute is 25 years. Under the TDOC’s interpretation, Mr. Davis faces a clear and

grievous risk of serving an additional 26 years beyond what the law requires or can

constitutionally impose. Furthermore, interpretation of the statute to require that a

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defendant serve a minimum of 51 years renders the possibility of parole meaningless,

contrary to the legislative intent to provide two distinct life sentences and in violation of

Mr. Davis’s constitutional rights. Additionally this misinterpretation of the law poses a

great burden and expense to the state. Because Mr. Davis is subject to the sentence as

calculated by the TDOC, the denial of his opportunity for parole for an additional 26

years is a “distinct and palpable injury” caused by the TDOC. Having exhausted his

administrative remedies, the Court is Mr. Davis’s only remaining means of redress. Thus

Mr. Davis has a vested interest in this Court’s review of the constitutionality and legal

validity of 40-35-501 and his rights thereunder.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

20. The Fourteenth Amendment to the Constitution of the United States provides in part that

“No State shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any person of life, liberty, or

property without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV, § 1.

21. The Eighth Amendment to the Constitution of the United States provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth Amendment

requires that a sentence be proportional to the offense. Weems v. United States, 217 U.S.

349 (1910); Miller v. Alabama, 132 S. Ct. 2455 (2012).

22. Article II, Section 3 of the Tennessee Constitution vests the state’s legislative power

solely in the General Assembly. In general, “‘legislative power’ is the authority to make,

order, and repeal law.” State v. King, 973 S.W.2d 586, 588 (Tenn 1998). Specifically,

the General Assembly may not delegate to an executive branch agency the exercise of the

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legislature’s discretion as to what the law shall be, because this is a “purely legislative”

function. See Dep’t of Pub. Welfare v. Nat’l Help ‘U’ Ass’n, 270 S.W.2d 337, 339

(Tenn. 1954); State v. Edwards, 572 S.W.2d 917, 919 (Tenn. 1978)

23. Article II, Section 17 of the Tennessee Constitution provides in relevant part that “[a]ll

acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise,

the title or substance of the law repealed revived or amended.” Statutes that fail to meet

the requirements of Article II, Section 17 will be struck down as invalid. State v. Hailey,

505 S.W.2d 712, 713 (Tenn. 1974).

24. Tenn. Code Ann. § 3-2-107 provides in relevant part that:

(a)(1) Fiscal notes shall be provided for all general bills or resolutions increasing or

decreasing state or local revenues, making sum-sufficient appropriations, or increasing or

decreasing existing appropriations or the fiscal liability of the state or of the local

governments of the state. Not more than ten (10) days following the introduction of any

such bill or resolution, the fiscal review committee shall furnish to the chief clerk of the

house or houses of introduction a statement of analysis of the fiscal effect of such bill or

resolution and shall prepare and distribute copies of the statement to members of the

general assembly. Within ten (10) days following receipt of a request from a member of

the general assembly for a fiscal note on any proposed bill or resolution requiring a fiscal

note, the fiscal review committee shall prepare a fiscal note statement to accompany such

proposal at the time of introduction. Within twenty-four (24) hours following a request by

the sponsor of an amendment to any pending measure on which a fiscal note is required

by this section, the fiscal review committee shall prepare for the sponsor a fiscal note

showing what effect the amendment would have on the estimates made in the fiscal note

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which applies to the bill or resolution. In regard to any bill or resolution affecting local

government, the office of the comptroller of the treasury is directed to provide to the

fiscal review committee, upon request, the information necessary to determine the fiscal

effect of such bill or resolution.

(a)(2)(A) The fiscal note shall, if possible, include an estimate in dollars of the

anticipated change in revenue, expenditures, or fiscal liability under the provisions of the

bill or resolution. It shall also include a statement as to the immediate effect and, if

determinable or reasonably foreseeable, the long-range effect of the measure. If, after

careful investigation, it is determined that no dollar estimate is possible, the note shall

contain a statement to that effect, setting forth the reasons why no dollar estimate can be

given. The fiscal note statement shall include an explanation of the basis or reasoning on

which the estimate is founded, including any assumptions involved.

(a)(2)(B)(i) The fiscal note shall also include a statement as to the immediate effect and,

if determinable or reasonably foreseeable, the long-range effect on commerce and jobs in

this state. Such impact to commerce statement shall also include, if possible, an estimate

in dollars of the anticipated change in costs or savings to commerce under the bill or

resolution.

25. Tenn. Code Ann. § 39-13-204 provides in relevant part:

(a) Upon a trial for first degree murder, should the jury find the defendant guilty of first

degree murder, it shall not fix punishment as part of the verdict, but the jury shall fix the

punishment in a separate sentencing hearing to determine whether the defendant shall be

sentenced to death, to imprisonment for life without possibility of parole, or to

imprisonment for life.

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(e)(2) The trial judge shall provide the jury three (3) separate verdict forms, as specified

by subdivisions (f)(1), (f)(2), and (g)(2)(B). The jury shall be instructed that a defendant

who receives a sentence of imprisonment for life shall not be eligible for parole

consideration until the defendant has served at least twenty-five (25) full calendar years

of the sentence. The jury shall also be instructed that a defendant who receives a sentence

of imprisonment for life without possibility of parole shall never be eligible for release on

parole.

26. Tenn. Code Ann. § 40-35-501(h)(1), as amended on July 1, 1993 provides in relevant part

that “[r]elease eligibility for each defendant receiving a sentence of imprisonment for life

for first degree murder shall occur after service of sixty percent (60%) of sixty (60) years

less sentence credits earned and retained by the defendant, but in no event shall a

defendant sentenced to imprisonment for life be eligible for parole until the defendant has

served a minimum of twenty-five (25) full calendar years of the sentence . . . .”

27. Tenn. Code Ann. § 40-35-501(i)(1), as amended on July 1, 1995, provides in relevant

part that “[t]here shall be no release eligibility for a person committing an offense, on or

after July 1, 1995, that is enumerated in subdivision (i)(2). The person shall serve one

hundred percent (100%) of the sentence imposed by the court less sentence credits earned

and retained. However, no sentence reduction credits authorized by § 40-21-236 or any

other provision of the law, shall operate to reduce the sentence imposed by the court by

more than fifteen percent (15%).” Tenn. Code Ann. § 40-35-501(i)(1).

28. Where an act intended to amend or supersede an existing law is found to be

constitutionally infirm, the former valid law remains in full force and effect, while the

unconstitutional amendment may be deleted. Franklin County v. Nashville, C. & St. L.

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Ry., 80 Tenn. 521, 531 (Tenn. 1883); State v. Driver, 598 S.W. 2d 774, 776 (Tenn.

1980); State v. Dixon, 530 S.W. 2d 73, 74-75 (Tenn. 1975).

FACTS

29. In 1993, the Tennessee General Assembly amended Tenn. Code Ann. § 40-35-501 by

adding sub-section (h).4 This amendment was made along with amendments to several

other statutes relating to life sentences. Under the statute, those who are sentenced to life

shall be eligible for parole after having served 36 years, which term may be reduced to a

mandatory minimum of 25 years, based on sentencing credits.

30. In 1995, the Tennessee legislature drafted Public Chapter 492 (House Bill 1762, Senate

Bill 1747) which was introduced to the General Assembly and passed as Tenn. Code

Ann. § 40-35-501(i). The statute provides in relevant part that persons subject to the

statute “shall serve one hundred percent (100%) of the sentence imposed by the court,”

with a maximum allowable reduction of 15% for sentencing credits earned.

31. The TDOC has interpreted § 40-35-501, the statute governing parole eligibility as

requiring that Mr. Davis serve 51 years before being eligible for parole consideration. As

a result, the TDOC has calculated Mr. Davis’s parole eligibility date to be March 3, 2050.

At his earliest possible parole date, Mr. Davis will be 70 years old.

32. The federal government estimates that, on average, prisoners sentenced to life will not

live longer than 40 years in prison and thus uses 470 months as the numeric value for life

imprisonment in its calculations. U.S. Sentencing Commission, Preliminary Quarterly

Data Report, A-8 (through June 30, 2014) at,

http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-

statistics/quarterly-sentencing-updates/USSC-2014-3rd-Quarterly-Report.pdf).

4 At the time, the current subsection (h) was subsection (g).

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33. The U.S. Census Bureau estimates that white males born in Tennessee between 1979 and

1981 have an average life expectancy of 69.9 years. Monique Oossee, Variations in State

Mortality from 1960 to 1990, U.S. Census Bureau, app. A-3, at 61 (May 2003),

http://www.census.gov/population/www/documentation/twps0049/twps0049.html. A

study conducted by Vanderbilt’s Dr. Evelyn J. Patterson found that for every year an

individual spent in prison, their life expectancy decreased by 2 years. Evelyn J.

Patterson, PhD., The Dose-Response of Time Served in Prison on Mortality: New York

State, 1989-2003, Am. J. Pub. Health, March 2013, 103(3): 523-528,

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3673515/.

34. When Mr. Davis was sentenced to life with the possibility of parole, he was an 18-year

old senior in high school, completing his Eagle Scout training, and honor student on his

way to study computer science with a scholarship to the Mississippi State University.

35. At the time of his crime, Mr. Davis was a highly emotional young man suffering from a

depressive disorder. He was involved in a love triangle and found out that his girlfriend,

Tonya Bishop, was romantically involved with the victim, Nick Creson, both also high

school seniors. At trial, the defense presented evidence that Mr. Davis suffered from

auditory hallucinations severe depression and expressed thoughts of suicide.

36. After his arrest and trial, Jacob arrived at South Central Correctional Facility (SCCF) in

1999 and from 2000-2001 he took all required programs, including anger management

and substance abuse programs.

37. Determined to pursue his interest in computer science, Mr. Davis joined the computer

information processing class and then the computer refurbishing program offered at

SCCF. He graduated from the program with a 4.0 grade point average. Mr. Davis also

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worked as the education clerk in order to assist others in the pursuit of their educational

goals.

38. Mr. Davis spent 10 years, from 2001-2011, dedicating himself to studying computer

programming full time. As a resourceful and industrious young man, Mr. Davis reached

out to external professors and educators, read dozens of text books, academic journals,

and white papers in order to create his own course of study and become an expert in IT,

computer software design and operating systems.

39. His hard work and dedication to his studies enabled Mr. Davis to become the lead

employee in the computer refurbishing department at SCCF from 2003-2011. He was

often the employee of the month, and his responsibilities at SCCF included assisting in

the creation of the education network and serving as the system administrator, as well as

repairing and maintaining SCCF computers.

40. In fact, Mr. Davis created his own software program that the prison otherwise would have

had to purchase and relinquished his intellectual property rights to SCCF. Mr. Davis’s

software allows SCCF to continue running the computer refurbishing program which in

turn refurbishes thousands of computers used in Tennessee schools and government

offices. Mr. Davis’s software has proven to be extremely useful and is still in use by

SCCF today.

41. In addition to his academic studies, Mr. Davis has taken it upon himself to give back to

his community even while being separated from it. From 2001-2006 Jacob Davis and a

fellow prisoner at SCCF met with and spoke to over 1,500 8th graders from surrounding

counties about his life and choices. He did this voluntarily as a public service because he

wanted at risk youth to understand that they could reach out for help if they needed it and

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that they did not have to make the same choices he made.5 Mr. Davis has also regularly

attended worship services for 15 of his 17 years of incarceration.

42. From 2013-2014, when he was at RMSI, Mr. Davis was enrolled as a college student

through Lipscomb University’s LIFE Program. Mr. Davis was a leader in this program

and carried a 4.0 grade point average. One of his papers written for a class on Restorative

Justice, a paper titled “Redemptive Imagination: the Fallacy of Judging across Borders of

Ignorance” was published in the Contemporary Justice Review, an academic journal that

focuses on issues in criminal, social, and restorative justice.6 Through his writing, Mr.

Davis was also a participant in this year’s Re-visioning Justice Conference held in April

at Vanderbilt University.

43. In 17 years of incarceration Mr. Davis has had no write-ups for violent offenses or drug

charges, and has never been affiliated with a gang or gang activity. TOMIS Disciplinary

Report through August 30, 2014. Mr. Davis is respected and loved by his family and a

broad community of educators and professionals. It is because he is the kind of man who

is capable of accomplishing all of the above that a jury determined that Mr. Davis should

have a chance at parole one day, that chance should be a meaningful chance because the

broader community of this state would be better off with Mr. Davis functioning and

contributing to our society as a free citizen.

COUNT ONE

44. Petitioner incorporates the preceding paragraphs in their entirety.

5 Newspaper and magazine articles were written about this project and an interview with Mr. Davis and his story figure prominently in the forthcoming book, Where the River Bends: Considering Forgiveness in the Lives of Prisoners, to be published by Cascade Books in winter 2015. 6 Mr. Davis also writes about restorative justice, a cause to which he became dedicated after being contacted by the parents of a young woman who was the victim in a case similar to Mr. Davis’s.

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45. This Court should declare that the only mandatory minimum sentence set forth in the

applicable statute is 25 years and if interpreted otherwise, the statute should be held

constitutionally void for vagueness.

46. Section 40-35-501(h)(1), provides that those subject to the statute are eligible for parole

after serving 60% of a 60 year sentence, or 36 years. The minimum sentence of 36 years

may be further reduced by sentence credits, such that the defendant may be eligible for

parole after serving 25 years.

47. Section 40-35-501(i)(1), which is the product of a 1995 amendment, provides that

persons subject to the statute “shall serve 100% of the sentence imposed by the court,”

with a maximum allowable reduction of 15% for sentencing credits earned. This section

does not specify the number of years that constitutes a life sentence.

48. The TDOC interprets the statute to mean that Mr. Davis must serve 85% of a 60 year

sentence, or 51 years, before being considered for parole. Neither one of these figures is

set forth in § 40-35-501(i)(1). Rather, as shown, the only time period referenced in the

statute is the 36 year period (60% of 60 years), which may be reduced to 25 years.

49. At most, the statute is unclear as to whether it imposes a sentence greater than 25 years.

In such a circumstance, the rule of lenity demands that ambiguities in criminal statutes be

resolved in favor of the defendant. Therefore, Mr. Davis should be required to serve the

less severe sentence of a minimum of 25 years rather than 51 years. State v. Horton, 880

S.W.2d 732, 735 (Tenn. Crim. App. 1994) (applying the rule of lenity as “a tie-breaker

when there is an otherwise-unresolved ambiguity.”) (internal citation omitted).

50. Alternatively, if the 1995 amendment is found to be constitutionally valid and applicable,

the appropriate minimum term for life imprisonment is 36 years, not 60 years as

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interpreted by the TDOC. The 1995 amendment states that the “person shall serve one

hundred percent (100%) of the sentence imposed by the courts.” However, because this

provision does not specify the number of years to be served, courts and the TDOC must

look to the statute as a whole to determine the appropriate sentence calculation.

Subsection (h) clearly provides that an individual sentenced to life imprisonment shall be

eligible for parole after 36 years. Thus a 36-year baseline sentence as provided by

subsection (h) must inform the subsequent interpretation of subsection (i).

51. Read together, subsections (h) and (i) would establish that “the sentence imposed by the

courts” is 36 years; therefore an individual must serve 100% of a 36-year sentence before

becoming eligible for parole. Additionally, subsection (i) provides that this sentence can

be further reduced by 15% based on sentencing credits, which when applied to a 36-year

sentence results in a minimum of 31.5 years served prior to parole eligibility.

52. If § 40-35-501 is not interpreted in one of the manners set forth above, it would be void

for vagueness because it does not provide notice of the possible number of years a life

sentence entails. If the later amended paragraph, (i)(1), is interpreted to supersede the

earlier drafted paragraph, (h)(1), it would be entirely unclear what number of years an

individual is required to serve 85% of. Constitutional due process provides that

individuals must be provided with clear notice of the sentences to which they are subject.

Lindsey v. Washington, 301 U.S. 397, 401 (1937) (due process prevented sentence from

being retroactively changed); California Dep’t of Corr. v. Morales, 514 U.S. 499, 508-

509 (1995) (changing application of parole statute after sentencing violated due process);

United States v. Harriss, 347 U.S. 612, 617 (1954) (lack of notice of criminalized conduct

violated due process). It therefore follows that individuals cannot be sentenced under

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statutes that are unclear as to what the sentence for a given crime is. When Mr. Davis

was discussing plea options with his lawyer, the vagueness of the statute made it unclear

as to what sentence he actually faced under § 40-35-501 if found guilty. To the extent the

statute is not clear as to how long an individual must serve before becoming eligible for

parole, the statute violates the notice requirements of due process.

53. Furthermore, the vagueness of the statute and courts’ application of it violate the

separation of powers required by Article II, Section 3 of the Tennessee Constitution,

which vests the state’s legislative power solely in the General Assembly. In general,

“legislative power” is “the authority to make, order, and repeal law.” State v. King, 973

S.W.2d 586, 588 (Tenn. Crim. App. 1998). Specifically, the General Assembly may not

delegate to the courts or to an executive branch agency the exercise of the legislature’s

discretion as to what the law shall be, because this is a “purely legislative” function. See

Dep’t of Pub. Welfare v. Nat’l Help “U” Ass’n, 270 S.W.2d 337, 339 (Tenn. 1954);

State v. Edwards, 572 S.W.2d 917, 919 (Tenn. 1978). The amended section of the statute

nowhere provides the number of years that should be used to calculate a life sentence.

The only part of the statute that provides that a life sentence should be 60 years also

provides that the defendant shall be eligible for parole after 36 years, which may be

further reduced to 25 years. This is the same section that the TDOC interprets to be

superseded by the newly amended section. Section 40-35-501(h)(1) cannot be interpreted

to be selectively in effect and selectively superseded, based on the whim of the TDOC.

By interpreting the statute this way, the judicial and executive branches have decided that

the minimum term for life imprisonment is 60 years, a decision that is exclusively for the

legislature to make.

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COUNT TWO

54. Petitioner incorporates the preceding paragraphs in their entirety.

55. The Court should declare that as interpreted by the TDOC, § 40-35-501(i)(1), which has

the effect of amending other Tennessee statutes without providing notice, violates Article

II, Section 17 of the Tennessee Constitution. Where a statute fails to comply with the

requirements of Article II, Section 17, it will be struck down by the judiciary. State v.

Hailey, 505 S.W.2d 712, 713 (Tenn. 1974). As interpreted by the TDOC, the 1995

amendment to § 40-35-501 would have the effect of changing the meaning of at least

three other statutes without including in its caption, or otherwise, that it affects other

statutes, as required by Article II, Section 17 of the Tennessee Constitution. First, as

interpreted, § 40-35-501(i)(1) would change the meaning of § 40-35-501 (h)(1) by

establishing a minimum sentence that differs from the minimum sentence set forth in

§ 40-35-501 (h)(1): 60% of 60 years, or 36 years, which can be further reduced to 25

years. Second, as interpreted, § 40-35-501(i)(1) would change the meaning of § 39-13-

204(a), which provides three distinct sentences for first degree murder, by eliminating the

distinction between the separate sentences of life without the possibility of parole and life

with the possibility of parole. Similarly, § 39-13-203, § 39-13-204(h), § 39-13-206 and

§ 39-13-207, all of which distinguish between life sentences and life without parole

sentences, would be undermined. Third, as interpreted, § 40-35-501(i)(1) would change

the meaning of § 39-13-204(e)(2), which provides that in a sentencing hearing for first

degree murder the judge shall instruct the jury “that a defendant who receives a sentence

of imprisonment for life shall not be eligible for parole consideration until the defendant

has served at least twenty-five (25) full calendar years of the sentence.” Such repeal or

amendment of former laws without reference in the caption, or otherwise, to the title or

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substance of the law repealed or amended would violate Article II, Section 17 of the

Tennessee Constitution. Should the Court find that the caption to the 1995 amendment,

which references “Title 40, Chapter 35,” satisfies the requirements of Article II, Section

17 with respect to its effect on § 40-35-501(h)(1), despite its failure to mention that, as

interpreted, (i)(1) would have a direct impact on (h)(1), the statute’s failure to identify

other code sections that it amends, nevertheless renders it invalid.

COUNT THREE

56. Petitioner incorporates the preceding paragraphs in their entirety.

57. The Court should declare that § 40-35-501 violates Mr. Davis’s constitutionally protected

liberty interest in his parole eligibility. The applicable sentencing statute, Tenn. Code

Ann. § 39-13-204 provides three distinct sentences for a first degree murder conviction:

life with the possibility of parole, life without the possibility of parole and the death

penalty. Of these three options, Mr. Davis was sentenced to life with the possibility of

parole. A statute must be interpreted to effectuate all of its terms. The fact that the

Tennessee General Assembly created three distinct sentences requires courts and the

TDOC to interpret the statute based on these clear distinctions and give proper meaning

to each. The inclusion of a sentence of life with the possibility of parole (1) evidences

legislative intent to distinguish this sentence from life without the possibility of parole

and (2) creates a vested interest for Mr. Davis in his parole eligibility.

58. The TDOC’s interpretation of § 40-35-501 effectively eliminates the distinction between

life with and without the possibility of parole. Requiring Mr. Davis to wait 51 years

before even being considered for parole, when he will be 70 years old, is in effect

requiring that he serve a life sentence without parole. Baldwin v. Tennessee Bd. of

Paroles, 125 S.W.3d 429 (Tenn. Crim. App. 2003) (reversing Parole Board’s decision to

21

defer parole re-consideration until petitioner had served 42 years, finding that such

deferral would have had the “essential effect” of changing petitioner’s life “sentence to

life without parole, contrary to what the Legislature intended.”); see also State v. Golden,

No. 02C01-9709-CR-00362, 1998WL 518071, *8 (Tenn. Crim. App. Aug. 21, 1998)

(observing that a 51 year sentence is, as a practical matter, the same as a life without

parole sentence). Particularly given the lowered life expectancy rates for prisoners7, this

interpretation eliminates any meaningful distinction between sentences of life with the

possibility of parole and life without the possibility of parole.

59. Furthermore, the inclusion of the possibility of parole by the legislature in the sentencing

structure creates a constitutionally protected liberty interest in the right to a meaningful

opportunity for parole. In Baldwin, the Court held that the “thrust of [the parole] statutes,

and indeed of the whole concept of parole, is that over time people can change, and that

even a convicted felon may be able to live in accordance with the law, if he or she is

released before the end of his sentence.” Baldwin v. Tenn. Bd. of Paroles, 125 S.W.3d

429, 434 (Tenn. Ct. App. 2003). In Baldwin, after serving over twenty years of his

sentence, the petitioner was considered for parole and his parole was denied. The parole

board then deferred his next consideration date for twenty years. The Court held this

deferral was improper, noting that it prevented members of four subsequent parole boards

from “even making an initial consideration of whether Mr. Baldwin could be a suitable

candidate for parole.” Id.

60. By providing one first degree murder sentence that has a parole opportunity and one that

does not, the legislature adopted the idea that those people who a jury determines can

7 Evelyn J. Patterson, PhD., The Dose-Response of Time Served in Prison on Mortality: New York State, 1989-2003, Am. J. Pub. Health, March 2013, 103(3): 523-528, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3673515/.

22

change, should be given the opportunity for parole. The absence of a meaningful

opportunity for parole is equivalent to no opportunity for parole. To read § 40-35-501 as

requiring a minimum sentence of 51 years, ignores the concept of parole and changes Mr.

Davis’s sentence from one that provides an opportunity for parole to one that does not.

61. The TDOC’s misinterpretation of the statute means that Mr. Davis must serve, at

minimum, an additional 26 years of incarceration over and above the specified minimum

of 25 years before receiving the “initial consideration.” In Baldwin, the court reversed

the 20-year deferral of parole on the basis that the Parole Board had acted arbitrarily,

noting that constitutional issues should only be decided where necessary. Id. at 435, 433.

In this case, the constitutional issue must be addressed because TDOC’s interpretation of

the statute has caused the 26 year deferral of parole consideration and violated Mr.

Davis’s due process rights by denying him the opportunity for parole without any

procedure.

62. Moreover, due to the current calculation of Mr. Davis’s sentence under § 40-35-501, the

TDOC renders meaningless the sentence reduction credits that Mr. Davis continues to

earn. Because Mr. Davis has a vested interest in the retention and calculation of any

sentence credits earned, the TDOC must give effect to the sentence credits he has earned.

COUNT FOUR

63. Petitioner incorporates the preceding paragraphs in their entirety.

64. The Court should declare that § 40-35-501, as interpreted by the TDOC, violates the

Eighth Amendment by creating a disproportionate sentence. As discussed in more detail

above, the sentencing statute, § 39-13-204 very clearly provides for a life sentence that

allows for parole and one that does not. In the sentencing phase, the jury assigns the

sentence that they deem proportionate to the crime. It may be inferred that if an

23

individual is sentenced to life with the possibility of parole that the jury determined that a

sentence of life without the possibility of parole was disproportionate to the severity of

the offense. By interpreting the statute in a way that effectively obliterates the difference

between these two sentences, the TDOC subjects Mr. Davis to a disproportionate

sentence and violates his Eighth Amendment right. Weems v. United States, 217 U.S.

349 (1910) (holding that a sentence may violate the Eighth Amendment’s prohibition

against cruel and unusual punishment when it is disproportionately severe compared to

the crime for which it is inflicted); Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding

that proportionality between the offense and the punishment is central to the Eighth

Amendment cruel and unusual punishment analysis).

COUNT FIVE

65. Petitioner incorporates the preceding paragraphs in their entirety.

66. The Court should declare that the cost of implementing § 40-45-501(i) grossly exceeds

the cost contemplated by the legislature in the fiscal note accompanying the bill and thus

should be reconsidered. Tenn. Code Ann. § 3-2-107 provides that “[f]iscal notes shall be

provided for all general bills or resolutions increasing or decreasing state or local

revenues, making sum-sufficient appropriations, or increasing or decreasing existing

appropriations or the fiscal liability of the state or of the local governments of the state.”

While the statute makes an exception for where “it is determined that no dollar estimate

is possible,” in that situation it requires that “the note shall contain a statement to that

effect, setting for the reasons why no dollar estimate can be given.” In order to give

effect to this statute, the legislature should not be permitted to rely on fiscal notes that

have no correlation to the actual costs of implementing a bill.

24

67. In consideration of Public Chapter 492 (House Bill 1762, Senate Bill 1747), the General

Assembly was provided with a fiscal note that projected an “increase in state

expenditures of $57,899,352 for incarceration” along with a $2,100,040 recurring cost of

judicial process and a $279,500 one-time cost. Fiscal Note from James A. Davenport,

Executive Director, to Chief Clerks of the Senate and the House regarding SB 1747 - HB

1762 (Mar. 15, 1995) http://www.capitol.tn.gov/Bills/99/Fiscal/SB1747.pdf. This note

provides a 10-year estimate for implementing the entirety of § 40-35-501(i), the provision

that increased the length of incarceration for fifteen offenses, not just murder in the first

degree. The actual cost of incarcerating persons sentenced to life since the enactment of

the § 40-35-501(i), subject to the TDOC’s interpretation of the statute which requires a

minimum sentence of 51 years would be approximately $1.3 billion.8 This amount is

nearly 22 times the amount that was considered by the General Assembly in the fiscal

note to the bill. Even if the estimate provided in the fiscal note is projected out for 50

years instead of 10, making the projected cost $300 million, that is less than one quarter

of the actual cost of enforcing the statute with respect to the population of inmates

sentenced to life with the possibility of parole as of 2013.

68. It is clear from the recordings of the legislative session, that the costs associated with

implementing the act were not clear to those considering it. At various points in the

session, speakers mentioned the numbers $9.5 million for incarceration and an additional

$1 million for judicial costs, $160 million, $20 million, and $58 million in year 10. ,

8 The estimated cost for individuals currently incarcerated and serving a life sentence in TDOC under § 40-35-501(i) was derived by using an approximate cost of $25,000 per year per person for incarcerated individuals under the age of 50 and an increased cost of $50,000 per year per person for incarcerated individuals 50 or more years old. The cost was calculated using data for all individuals serving a 51-year sentence as of 2013 at a cost of $25,000 per year for each individual from the time of their sentencing to age 49 and at a cost of $50,000 per year from age 50 to age 90. If this cost estimate were reduced based on the likelihood that individuals will die before they serve 51 years or reach the age of 90, this would simply confirm the fact that a 51 year minimum sentence is the functional equivalent of a sentence of life without parole.

25

Audio tape: House Committee on Judiciary, held by the Tennessee General Assembly.

G.A., 1st Session (May 2 and 3, 1995), tape #s 1 and 3. At one point a speaker said, “I’d

like to first ask you where you’re getting your 58 million” Id. and when directed to the

fiscal note he said “I don’t believe it’s going to be as extreme as what the fiscal note

would indicate.” Id. He further notes, “[w]ell, as you know, there has been some

discrepancies about the fiscal note; how we arrive at those figures.” Id. It is apparent

from the legislative session recordings that the General Assembly never had a $1.3 billion

price tag in mind when enacting the legislation, and certainly did not have the even larger

price tag that must result when the costs of increased incarceration for the other fourteen

affected offenses are taken into consideration.

COUNT SIX

69. Petitioner incorporates the preceding paragraphs in their entirety

70. For the reasons set forth above, Mr. Davis should be eligible for parole after serving a

minimum of 25 years. The TDOC’s interpretation of the statute is further undermined by

the fact that, if they are correct in their interpretation of the statute to mean that Mr. Davis

must serve 51 years prior to parole eligibility, his conviction must then be improper

because in that circumstance the jury should have been informed that a life sentence

would carry with it a 51 year minimum sentence. Vaughn v. State of Tenn., 202 S.W.3d

106, 119-120 (Tenn. 2006). In Vaughn, the defendants were convicted of first degree

murder (among other offenses) and sentenced to life. Vaughn, 202 S.W.3d at 111-12

(Tenn. 2006). Prior to deliberations, the jury was not informed that the defendants would

be required to serve a minimum of 51 years if sentenced to life. Id. at 116-17. The Court

therefore reversed the defendants’ convictions, observing that it was “reasonably

probable that the juries would have convicted [defendants] of a lesser offense had they

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been read a correct instruction on release eligibility.” Id. at 120. In Mr. Davis’s case, the

jury was not formally instructed that a life sentence would carry with it a 51 year

minimum sentence. In Mr. Davis’s case, after having found Mr. Davis guilty of first

degree murder, the jury consciously chose to give him a life sentence instead of a life

without parole sentence, but they found him guilty and sentenced him to life ignorant of

the fact that the life sentence they imposed “[would], as a practical matter, have the same

effective sentence as life without parole.” State v. Golden, No. 02C01-9709-CR-00362,

1998 WL 518071, at *8 (Tenn. Crim. App Aug. 21, 1998). The State cannot have it both

ways: it cannot insist that Mr. Davis serve a minimum of 51 years and also maintain as

proper his conviction where the jury was not informed that, if it convicted Mr. Davis of

first degree murder, Mr. Davis would be required to serve 51 years before being eligible

for parole consideration.

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CONCLUSION

71. For the above stated reasons, Mr. Davis seeks a Declaratory Order recalculating his

sentence based on § 40-35-501(h)(1), requiring that he serve 60% of a 60 year sentence

less sentence credits earned to reduce his sentence to a minimum of 25 years served, or in

the alternative, 85% of 36 years, or 31.5 years. Additionally Mr. Davis requests a

Declaratory Order instructing the TDOC to record any sentence reduction credits earned

and retained and to retroactively credit Mr. Davis with any previously earned sentence

reduction credits that were not properly recorded.

This Is The First Application For Extraordinary Relief.

Respectfully submitted,

William Howell 175 Stonewall St. #201 Memphis, TN 38104 (828) 713-0294

CLEARY GOTTLIEB STEEN & HAMILTON LLP

David H. Herrington (pro hac vice application pending) One Liberty Plaza New York, New York Phone: (212) 225-2266 Fax: (212) 225-3999