CAPITOL HILL WEEK: Major bills combating criminal gangs are approved as legislature prepares to close 2013 legislative session

NASHVILLE, Tenn. —  State Senators approved several bills to make Tennessee’s streets safer as the General Assembly prepares to close the 2013 legislative session, including major legislation to combat gang crime in Tennessee.  Gang related crime in Tennessee has risen steadily in the last four years, as incidents rose about 110 percent from 2005 through 2011 according to the Tennessee Bureau of Investigation (TBI).  The TBI also reports that cities with fewer than 50,000 residents saw gang crimes rise 232 percent as members are migrating from urban areas to recruit new members, expand their drug distribution territories, form new alliances, and collaborate with rival gangs and criminal organizations for profit and influence.
Last year, the General Assembly increased sentences for certain serious crimes committed by groups of three or more acting in concert.  Lawmakers also approved tougher sentences for gun possession by criminals with prior violent or drug felony convictions.  Legislation, sponsored by Senate Majority Leader Mark Norris (R-Collierville) and passed by the Senate Judiciary Committee this week, continues those efforts by rewriting and simplifying the state’s Criminal Gang Enhancement statute, which prosecutors report is too difficult to interpret and navigate.

Currently, prosecutors must prove the group is a “criminal gang;” show the defendant is a “criminal gang member;” demonstrate the gang and/or an individual has committed a criminal gang offense, and establish the group has a pattern of “criminal gang activity.” The revised statute lists the specific offenses considered to be criminal gang offenses rather than asking prosecutors and courts to interpret today’s more vague definition.  
“One complaint that is often heard about Tennessee’s current criminal gang statue is that it is difficult even for the most astute prosecutor, defense lawyer or judge to navigate,” said Leader Norris.  “Simplifying this definition goes far in making the law more effective — keeping gang members off the street and out of our communities.”
The offenses proposed were developed with input from prosecutors familiar with the most common crimes committed by gangs in their communities.  This change applies to offenses committed on or after the effective date of the act, while the current language would be left to allow for the use of criminal gang offenses committed prior to the effective date in prosecution and sentencing under this statute.  The bill adds “facilitation of” a criminal gang offense for the purposes of determining a “pattern of criminal gang activity.”
According to 2012 data from the Tennessee Bureau of Investigation, gang members now outnumber law enforcement officers 2 to 1 in the state.

A separate bill to combat gang violence was approved by the full Senate on Thursday tightening language in the state’s Racketeer Influenced and Corrupt Organizations (RICO) law to more effectively prosecute criminal gang activity in Tennessee. Similarly, this bill sponsored by Senate Speaker Pro Tempore Bo Watson (R-Chattanooga), also improves on legislation passed by the General Assembly last year which expanded the definition of racketeering activity under the state’s RICO statute to include criminal gang offenses. That new law made it easier to prosecute gang members and increased penalties for gang-related activities to a Class B felony punishable by a fine of up to $250,000 and/or imprisonment of up to 20 years. 

Senate Bill 291 merely lists those crimes of violence specifically and moves that listing directly into the RICO law. This move will prevent any subsequent changes to the state’s gang enhancer statute from affecting RICO prosecutions.

In an effort to bring Tennessee’s RICO law on par with Florida’s law, which provides the national model for prosecuting gang members under racketeering laws, the bill allows investigators to go back five years when looking for predicate offenses rather than the two years under current law.  The most significant change proposed by the legislation deals with the fact that, as written, Tennessee juries can only convict defendants of either the predicate offense or the RICO violation. A predicate offense is a crime that is a component of a more serious offense.  The new law will allow juries to find the defendant guilty of the robbery, rape, narcotics dealing, etc., as well as the RICO violation.

Under the state’s RICO law, law enforcement authorities must show that those arrested are gang members through previous convictions and that they have profited by their affiliation and illegal activity. 

 “This bill gives law enforcement another tool in their toolbox to fight the epidemic problem we are facing in this state with criminal gangs,” said Watson.  “It is a continuation of legislation from the Hamilton County delegation and our Gang Task Force brought last year regarding racketeering and its application to criminal gangs.  It also looks at the best practices in gang laws across the nation to help rid our streets of this scourge.” 

Hall and Food Tax Relief Bills headed to Senate for final consideration after Finance Committee Approval

The state budget continues to be the main focus for lawmakers during the remaining days before adjournment.  The Finance Committee approved two major tax relief bills this week, sending them to the Senate floor for final consideration.  One would allow more senior citizens to qualify for Hall income tax relief, while the other would reduce the state sales tax on food from 5.25% to 5.0%.  Senate Bill 198 and Senate Bill 199, sponsored by Senate Majority Leader Mark Norris (R-Collierville), are part of Governor Bill Haslam’s budget package to provide tax relief to Tennesseans and have been a legislative priority of many Republican lawmakers for the past decade.

The Hall tax is imposed on income derived from interest on bonds, notes and stock dividends.   Since enactment of the Hall tax in 1929, the use of investment savings has grown as a primary source of retirement income.  The legislation approved this week raises the Hall income tax exemption level for citizens age 65 and older from $26,200 to $33,000 for single filers and from $37,000 to $59,000 for joint filers.

This legislation builds on Hall tax relief efforts taken in 2011 that raised the exemption level for senior citizens from $16,200 to $26,200 for single filers and from $27,000 to $37,000 for joint filers.  The food tax reduction legislation also builds on 2012 legislative action to reduce the state portion of the sales tax on grocery food from 5.5% to 5.25 %. 

The 2013-14 state budget legislation provides a total of $23.1 million, which will go back to taxpayers through a combination of tax relief proposals.  In addition to the Hall tax and food tax relief bills, the budget provides funds to raise the inheritance tax exemption level from $1.25 million to $2 million as authorized by Public Chapter 1057, passed by the General Assembly last year.  Finally, the budget proposal provides tax relief for low income seniors, veterans and the disabled by fully funding the growth of the property tax freeze program enacted in 2007.

Legislation prevents the wholesale printing or Internet posting of names of those holding a Tennessee handgun permit

Legislation to prevent the publication of handgun carry permit holders in the news media or on the Internet will now go to the governor for his signature after final passage in the State Senate on Wednesday.  Senate Bill 108 allows for the media to inquire and the Safety Department to confirm whether someone who had run afoul of the law was a permit holder but only upon providing a legal document or other record that “indicates the that person is not eligible to possess a handgun carry permit.” The bill also provides for exceptions in cases where law enforcement may have to visit a home or when a court order allows viewing. 

“This bill protects both the handgun permit carriers and the non-handgun permit carriers,” said Senator Ferrell Haile (R-Gallatin), sponsor of the bill.  “It prevents criminals looking for guns to steal from having a mapped list of permit holders with names and addresses.  At the same time, it prevents criminals from identifying non-permit holders and knowing that a specific home perhaps that home has no protection.”

The companion bill was approved 84-10 in the House of Representatives last month.

Senate passes “Freedom from Unwarranted Surveillance Act”

The State Senate voted 32-0 on Thursday for legislation to protect citizens from unwarranted surveillance by drones and to help ensure compliance of the unmanned planes with the Fourth Amendment to the U.S. Constitution.  Senate Bill 796, sponsored by Senator Mae Beavers (R-Mt. Juliet), defines “drones” and requires a search warrant to be issued by a judge before a drone can be used in Tennessee.

“The Federal Aviation Administration predicts 10,000 commercial drones could be in the skies by 2020,” said Senator Beavers.  “As this number increases, it is very important that they are operated responsibly and consistently, as well as in accordance with our Fourth Amendment Rights.” 

The Fourth Amendment to the U.S. Constitution guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.

The bill does provide for exceptions to prevent imminent danger to life when law enforcement authorities are countering a high risk of a terrorist attack, looking for a fugitive, monitoring a hostage situation or helping find a missing person.  If drones violate these provisions, civil action may be filed under the legislation.  The measure also requires that data will be private and deleted no later than 24 hours after acquisition. 

Beavers said the bill is modeled after a recently passed Florida law.  Eleven states have filed or passed similar legislation.

Legislation ensures public schools have access to EpiPens to avert life-threatening allergic reactions

Legislation to ensure that every public school in the state has epinephrine injector pens on hand, or EpiPens, moved through the Senate Finance Committee this week.  Senate Bill 1146, sponsored by Senator Mark Green (R-Clarksville), would require public schools in Tennessee to keep at least two epinephrine injector pens on campus in case of a life-threatening allergic reaction when the student does not have one available.

Currently, Tennessee schools are not required to keep emergency medications on hand to treat allergic reactions. This legislation authorizes the school nurse or other trained school to administer the epinephrine auto-injectors to respond to an anaphylactic reaction using protocols from a physician.   The bill would absolve trained school administrators from liability for giving the medication.

“Access to epinephrine can save lives,” said Senator Mark Green, who is an emergency room physician. “Sometimes seconds matter, and the sooner you administer the epinephrine the better chance you have to stopping the reaction.”

In Brief….

Trusts — Legislation which amends Tennessee’s trust law with the overall goal of making Tennessee an attractive state for the establishment and management of trusts has been approved.  Senate Bill 713, sponsored by Senator John Stevens (R-Huntingdon), would alter multi-participant trusts where trustees are directed by other trust participants in executing the trust.  These types of trusts are most common for managing multi-generational wealth within families and for cross-border families.  Modeled after South Dakota’s trust statutes, distinctions between spendthrift, discretionary, and support trusts have been clarified in the bill to bring Tennessee law up-to-date with prevailing trust law around the country.  Other measures aim to provide stability by strengthening trust law against vague language or court challenges and to ensure that a trust settlor’s intent in establishing a trust is carried out fully. 

Child Sex Offenders  —  The Senate Judiciary Committee has approved a bill that allows the courts to authorize a single trial for a serial child sex offender who commits his or her crime in multiple jurisdictions in Tennessee.  Senate Bill 1362, sponsored by Senator Ken Yager (R-Harriman), is designed to protect child sexual abuse victims from the trauma of having to testify in multiple trials.  The legislation would affect cases like that of Jerry Sandusky where multiple abuse cases were grouped together for trial in Pennsylvania.

Model Character Development Program —  A group of Knoxville Central High School students and teachers joined Medal of Honor recipient Leo Thorsness and State Senator Becky Massey (R-Knoxville) in the State Senate on Monday night in recognition of a model character program for Tennessee public schools.  Senate Joint Resolution 45 urges official adoption by the State Board of Education of the Congressional Medal of Honor Character Development Program as the official curriculum to be used to meet the character education requirements currently set out in state law.  The Congressional Medal of Honor Character Development Program has been endorsed by a number of school systems across the nation, but Tennessee is the first state to endorse its use statewide.  The curriculum includes the six characteristics promoted by the Congressional Medal of Honor recipients:  courage, commitment, sacrifice, patriotism, integrity and citizenship.  The curriculum is provided online for free and is accessible by any public school.  The curriculum would become effective for the 2013-14 school year. 

Veterans / In-State Tuition — Legislation that would ensure all honorably discharged veterans that relocate to Tennessee receive in-state tuition rates at state colleges and universities has been approved by State Senators.  Senate Bill 208, sponsored by Senate Education Committee Chairman Dolores Gresham (R-Somerville), applies to veterans who register for college within 24 months from the time of their honorable discharge. 
In addition, the bill grants members of the Tennessee State Guard one free course per term at any state-supported post-secondary institution, capped at 25 tuition waivers annually.  The Tennessee State Guard is the all-volunteer arm of the Tennessee Military Department, which provides a professional complement of personnel to support the Tennessee National Guard.

DUI / Interlock Devices — The Senate Finance Committee has approved key legislation to curb drunk driving, requiring the use of ignition interlocks for all convicted drunk drivers.  In 2011, 257 people were killed in Tennessee in alcohol-related crashes, which is approximately 27% of all traffic fatalities in the state.  Senate Bill 670, sponsored by Senator Mae Beavers (R-Mt. Juliet), decreases from 0.15 percent to 0.08 percent, the breath or blood alcohol concentration (BAC) that is considered an enhanced offense for purposes of issuing a restricted driver license. The bill also requires the interlock device be capable of taking a photo, to ensure that another person does not provide the sample for a convicted offender.  The average first offender has been on the road 80 times drunk before their first arrest according to Mothers Against Drunk Driving (MADD).  Currently, 17 states require interlocks for all convicted drunk drivers.

Synthetic Drugs — Legislation that adds to the list of synthetic cannabinoids that are currently prohibited within the state of Tennessee is now on its way to Governor Haslam for his signature.  Senate Bill 48, sponsored by Senator Mae Beavers (R-Mt. Juliet), clarifies the definition of a controlled substance analogue to ensure that any substance that differs from a controlled substance by no more than two atoms qualifies. By expanding the definition, it prohibits a DUI offender from using the defense that he or she was lawfully using a controlled substance analogue. The bill does provide exemptions for drugs or substances that have been approved by the Food and Drug Administration for research purposes.

Human Trafficking / Children’s Testimony — The full Senate has approved Senate Bill 1027, sponsored by Senate Republican Caucus Chairman Bill  Ketron (R-Murfreesboro), to allow children who are victims of trafficking for commercial sex acts and patronizing prostitution the opportunity to testify outside of the courtroom by using a two-way closed circuit television. Currently, the same courtesy is afforded to victims of aggravated sexual battery, rape, incest, aggravated child abuse, kidnapping, aggravated kidnapping, especially aggravated kidnapping and criminal intent to commit any of the offenses above.  

Human Trafficking / Penalties, Restitution and Custody — The full Senate also approved five other bills, sponsored by Senate Judiciary Committee Chairman Brian Kelsey (R-Germantown), that deal with penalties, restitution child custody and the statute of limitations in cases of human trafficking.  Senate Bill 1032 increases the charge of promoting the prostitution of a minor from a Class E felony to a Class A or B felony. Senate Bill 1035 provides defendants or victims of sex trafficking restitution of special damages which include medical- and counseling-related expenses the victim incurred as a result of sex trafficking and other offenses.  Senate Bill 1390 broadens the definition of custodian to include anyone who physically possesses or controls a child.  This proposal would enable Child Protective Services to remove a child from the care of a trafficker in cases in which the trafficker is not a parent, guardian or legal custodian, which, under current law, are the only people considered custodians.  Senate Bill 1028 extends the statute of limitations for commercial sex acts and soliciting the sexual exploitation of a minor to ten years after the victim turns 18, and patronizing and promoting prostitution of minor to 15 years after the victim has turned 18.   In many instances, victims are unaware of the fact they are victims at the time of their 18th birthday. This legislation would allow them more time and maturity to make that realization.  Finally, Senate Bill 1030 prohibits defendants from using consent as a defense in the cases of soliciting, sexual exploitation of a minor, aggravated sexual exploitation of a minor, and especially aggravated sexual exploitation of a minor.

Human Trafficking / RICO — In addition, the full Senate approved Senate Bill 1038, sponsored by Senate Judiciary Committee Chairman Brian Kelsey (R-Germantown), on Thursday to add trafficking for commercial sex acts, promoting prostitution, patronizing prostitution, solicitation of a minor, soliciting the sexual exploitation of a minor and exploitation of a minor by electronic means to the list of criminal acts that can constitute a charge of  racketeering. 

Rape / Child Custody — Senator Jack Johnson (R-Franklin) carried Senate Bill 923 through the full Senate this week to allow a court to terminate the parental rights of a person convicted of rape, aggravated rape or rape of a child.  Moreover, the bill allows certified copy of the conviction of either three offenses as evidence enough to terminate parental rights, which is intended to protect rape victims from having to appear in court with the convicted rapist

State Employees / New Hires — State Senator voted this week to reform the state’s Tennessee Consolidated Retirement System (TCRS) pension plan for new hires beginning July 1, 2014.  The proposed changes were brought to the legislature to ensure future generations of state employees, higher education employees and K-12 teachers will receive the benefits promised to them during their time as state employees.  It does not affect current employees.  Senate Bill 1005, sponsored by Senate Finance Committee Chairman Randy McNally (R-Oak Ridge), would change the current defined-benefits system for new employees hired after June 2014 to a hybrid plan that includes elements of defined-benefits and defined-contribution programs. A defined-benefit plan guarantees retirees a fixed pension benefit based on their years of service and earnings, while defined-contribution plans do not have guaranteed payment levels but rather specified contribution levels by the employer. 

Attorney General — The Senate heard the first of three readings of a resolution sponsored by Senator Mark Green (R-Clarksville), calling for the State Attorney General (AG) to be selected by the General Assembly provided voters agree.  Currently, the Tennessee Attorney General is selected by the State Supreme Court and serves until he or she resigns or are replaced by the five Justices.  The resolution, Senate Joint Resolution 196, would give citizens the opportunity to vote on changing that process to provide that the Attorney General be selected in a joint convention of the legislature to a four-year term beginning in January 2019.  The constitutional amendment process requires approval by both the 108th General Assembly currently in session, and the 109th, which will take office in 2015.  If approved, the question would then go to voters in a statewide referendum in the 2018 general election.

Governor / Duties — A joint resolution that provides for a process to hand over the office of governor during a period when he or she cannot perform their duties was approved by the State Senate this week upon its third reading.  Senate Joint Resolution 103, sponsored by Senator Becky Duncan Massey (R-Knoxville), would allow for the Speaker of the Senate to assume the duties of office if the Governor is temporarily incapacitated, followed by the Speaker of the House of Representatives.  Currently, the state’s Constitution is silent on incapacitation.  This bill follows Tennessee’s current constitutional provision that provides the Speaker of the Senate (followed by the Speaker of the House) to assume the duties in cases of death, removal from office or resignation.  If approved by a supermajority of the General Assembly during the 109th General Assembly, the measure then goes to the voters in the 2018 general election where it must get a plurality of votes as measured by total number voting in the gubernatorial election.

School Safety — Two proposals to help keep students safe at school won approval this week.   Senate Bill 570, sponsored by Senator Frank Niceley (R-Stawberry Plains), would give school superintendents the option to hire retired police officers, highway patrol officers, federal agents, game wardens and other personnel with extensive weapons or law enforcement training to serve as security at schools upon receiving 40 additional hours of specialized training.  The person would also have to complete the Peace Officers Standards and Training certified firearm training program.  In addition, the full Senate approved a resolution requesting the state’s BEP Review Committee to make a recommendation in its annual report this year as to whether the state’s school funding formula should be modified to include a component regarding school safety and security.  Senate Resolution 30 is sponsored by Senate Education Committee Chairman Dolores Gresham (R-Somerville).

Revenue Collections — Tennessee revenue collections continued to exceed budgeted expectations in March according to Finance and Administration Commissioner Mark Emkes.  The overall March revenues were $936.1 million, which is $33.1 million more than the state budgeted.  Total tax collections in March were 2.2% above the previous year.  The March collections continued to reflect strong corporate profits from last year, but also reflect very modest retail activity for the month of February. Finance and Administration Commissioner Mark Emkes said the “slowdown in retail spending reflects the two percent increase in the federal payroll tax in January and temporary erosion in consumer confidence, most likely brought about by the federal budget sequestration process.”

Beer Tax Reform — State Senators overwhelmingly approved legislation on Monday to reform Tennessee’s beer tax.  Senate Bill 422 will convert Tennessee’s outdated price-based tax to a volume based tax.  Under the current law which was created in the 1950s, Tennessee leads all other states’ beer tax rate by a 12 percent margin. In comparison to the state’s neighbors, Arkansas’ tax per barrel rings up at $7.51 and Mississippi’s at $13.23, while Tennessee tops out at $37 per barrel.  Sponsored by Senator Brian Kelsey (R-Germantown), the bill aims to promote competitiveness and economic opportunity, as well as choice for consumers.  The legislation now heads to the Governor’s desk for a signature.

Tennessee Technology Colleges — The name of the “Tennessee Technology Centers” will be changed under legislation passed in the Senate Finance Committee this week.  Senate Bill 643, sponsored by Senator Jim Tracy (R-Shelbyville), changes the name of the centers to “Tennessee Technology Colleges.”  The bill now goes to the Senate floor for final consideration.

A Soldier’s Child Day — The State Senate has approved a resolution designating June 2, 2013 as “A Soldier’s Child Day” in Tennessee.  Senate Joint Resolution 205, sponsored by Senator Jim Tracy (R-Shelbyville), encourages all Tennesseans to remember the fallen members of our military and their families.  The Soldier’s Child organization aims to honor the memory of the fallen parent by giving a meaningful gift to his/her children each year on their birthday until they reach adulthood.  The organization also sponsors these young people to be able to attend Journey Camp, a place where they can network with other children who have lost parents in war. 

Students with Disabilities / Occupational Diploma — The full Senate has approved legislation requiring the State Board of Education to adopt an occupational diploma for students with disabilities.  Senate Bill 886 is sponsored by Senator Joey Hensley (R-Hohenwald).


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