Spotlight Date: 
August, 1997

ATTENTION: SHERIFFS, COUNTY EXECUTIVES, COUNTY ATTORNEYS,
DISTRICT ATTORNEYS GENERAL -- PLEASE READ THIS !


WE FEAR THAT SOME PRISONERS ARE BEING RELEASED WITHOUT PROPER AUTHORITY.

Our office has recently discovered some confusion across the state regarding granting furlough or other forms of release to prisoners. 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. Furlough or release must not be granted by a sheriff where he or she does not have the power to do so. Unauthorized furlough or release could potentially endanger the public and expose the county to liability. Please 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, NOT THE SHERIFF, who is authorized to grant furlough for the reasons listed under conditions set by the court. Sheriffs, acting in respect to their duties as the superintendent of the jail or workhouse, CANNOT 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 outlined in the Tennessee Code, NOT BY THE SHERIFF ACTING ALONE.

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. Whether it is for work release or for furlough, the sheriff does not have discretion to grant the release. 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
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 the court does not set a percentage, it is assumed to be zero. 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 Op. Tenn. Atty. Gen. 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
The main point of this memo is that generally the SHERIFF HAS NO DISCRETION TO FURLOUGH A PRISONER; the approval of a judge or the board of workhouse commissioners is required 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 sentence established by the sentencing judge. If you have any questions about this memo, please call Paul Jennings, CTAS Criminal Justice Consultant, at 615-532-3555, or your regional CTAS consultant.