Spotlight Date: 
December, 1996

Our office has recently discovered that there is some degree of confusion across the state regarding granting furlough or other forms of release to prisoners. There are a number of different statutes governing these procedures which in some cases have been recently amended, so some degree of confusion is understandable. As with all uses of government powers, it is important that the power to grant furlough or release to prisoners be exercised strictly in accordance with the authority given by the law. In some cases, furlough or release may have been granted by a sheriff where he or she did not have the power to do so. This could potentially endanger the public and expose the county to liabilities. The purpose of this memo is to outline the statutory authority for granting furlough. and release. We ask that you take a moment to read this memo and consider if your policies and practices conform to the general law.

Granting furlough and work release:
The authority for granting furlough to inmates is established in Tennessee Code Annotated § 40-35-316. That statute reads as follows:

(a) In any case in which a defendant has been sentenced to a local jail or workhouse or is at a local jail or workhouse subject to the provisions of §40-35-212, the sentencing court shall have jurisdiction to grant furlough for any medical, penological, rehabilitative or humane reason, upon conditions to be set by the sentencing court. This section shall apply to convictions under § 55-10-401 after the mandatory minimum sentences have been served.

(b) The sentencing court shall have no authority to grant a furlough to a defendant pursuant to the authority of subsection (a) for the purpose of allowing such defendant to work unless the defendant is held to and meets all of the eligibility and supervision requirements, testing standards and other criteria imposed by or pursuant to state law.

[NOTE: paragraph (b) was added by Public Chapter 514 of the Acts of 1997, effective June 19, 1997.

As is clear from the language of the statute, it is the sentencing judge who is authorized to grant furlough for the reasons listed under conditions as set by the court. Sheriffs, acting in respect to their duties as the superintendent of the jail or workhouse, should not grant furlough to inmates on their own discretion.

Similarly, under T.C.A. §§ 41-2-127 through -132, certain inmates who were convicted of a misdemeanor may be granted release from a jail or workhouse for the purposes of working at the prisoner’s employment, conducting the prisoner’s own business or other self-employed occupation. The superintendent of the workhouse may make an application to the board of workhouse commissioners for release of the prisoner. If there is no such board, application is made to the court of general sessions. For jail prisoners, the sheriff may make such an application to the court of general sessions. In both cases, release must be according to the requirements and conditions outlined in these sections of the Tennessee Code.

If the inmate incarcerated in the workhouse was convicted of a felony, he or she may also be released for occupational, scholastic or medical purposes. However, any inmate serving a felony sentence based on a crime against person or property with a previous felony conviction for an offense against person or property is not eligible to apply for release. The statute does not contain similar provisions for felons incarcerated in the jail. As you will note, whether it is for work release or for furlough, the sheriff does not have discretion to grant the release himself. Permission for release must be granted by either a judge, or in some circumstances, the board of workhouse commissioners.

Granting Work Release or Furlough to Inmates Serving Less than one year:
There is another statute that also addresses these forms of release for inmates serving a sentence of less than one year. When the court imposes a misdemeanor sentence, the judge is directed by T.C.A.§ 40-35-302 to set a certain required percentage of the inmate’s sentence which must be served before the inmate is eligible for consideration for work release, furlough, trusty status or related rehabilitative programs. The percentage may be set at 0%, 10%, 20%, 30%, 40%, 50%, 60%, or 70%, but is not to be set in excess of 75%. If no percentage is set in the court’s judgment, the percentage is assumed to be zero percent. Once the required percentage of the sentence has been served, the sheriff or other administrative authority governing the jail or workhouse has discretion to place the inmate in such programs as allowed by law. In some cases, a person may be convicted of an offense that is a felony but sentenced to a period of less than one year in the local jail or workhouse. According to T.C.A. § 40-35-211(3), these inmates are treated in the same manner as inmates convicted of misdemeanors and are eligible for the same release programs. Please note however that the Attorney General’s Office has opined that the furlough status mentioned in this statute refers only to furlough programs that certain counties are required to establish by T.C.A. §§ 41-2-142 and 143. See Att’y Gen. Opin. 83-106 (March 2, 1983). The only counties governed by these statutes are those with a metropolitan form of government or a population over 600,000.

Summary
This memo is not meant to be a detailed discussion of various forms of release, but a brief description of who may grant release and when it may be granted. The statutes go into more detail regarding prisoner eligibility for release and should be consulted to make certain programs are operating in accordance with the laws. The main point we desire to make in this memo is that generally it requires the approval of a judge or the board of workhouse commissioners to grant a release to an inmate. The only time a sheriff has the discretion to grant such a release on his or her own authority is for inmates who are sentenced to less than a year in the jail or workhouse who have already served the minimum percentage of their statute established by the sentencing judge.