Nashville, Tennessee—A groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.”  The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t.  A recent poll of 531 registered voters in Tennessee indicated that 84% of Tennesseans support reforming the law, including 90% of Democrats and 80% of Republicans.  Among other things, the law operates to punish first-time, non-violent drug offenders more severely than defendants who are convicted of violent crimes like Rape and Second Degree Murder.

Calvin Bryant is a beloved former Hillsboro High School football star, a former Tennessee State University student, and a former Tennessean employee.  A decade ago, witnesses described him as a “model citizen” who had “impeccable” character, was “loving toward his family,” “took a great interest in the people who live[d] in his neighborhood,” and was “very generous” with the elderly.  In 2008, however, Mr. Bryant was indicted for selling ecstasy pills to an aggressive government informant who had contacted him repeatedly, reminded Mr. Bryant that “he had helped raise him,” insisted that he needed drugs to earn money to feed his family, and pleaded with Mr. Bryant to help him get some.

The government’s informant had thirty-nine (39) separate convictions on his record in Davidson County alone at the time of the drug sales at issue—many of them violent felonies.  Even so, the informant was paid more than $1,000 in taxpayer money and avoided jailtime in exchange for helping secure Mr. Bryant’s conviction.  Mr. Bryant’s first trial ended in a hung jury after several jurors concluded that Mr. Bryant had been entrapped.  After his second trial, however, Mr. Bryant was convicted of selling drugs.

Even though it was a first-time, non-violent offense—Mr. Bryant had no other criminal history of any kind—because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

Given the extraordinary circumstances of his prosecution, Mr. Bryant has filed a novel constitutional challenge to the application of Tennessee’s intensely punitive Drug Free School Zone law to his case.  Notably, even the District Attorney who prosecuted Mr. Bryant has submitted an affidavit supporting his early release, stating that: “I fail to see how an additional six years of incarceration will improve Mr. Bryant’s amenability to correction or would be required to maintain public safety.  I additionally fail to see how his release at a time earlier than 2023—and after over nine years of incarceration—will deprecate the seriousness of the offenses for which he was convicted or significantly imperil public safety.”

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours—especially when a government informant has set up a drug transaction inside a school zone on purpose.  As one Tennessee judge has explained, for example:

I simply do not believe that the Tennessee legislature intended the scope of the Act to include drugs brought into the protected school zone by law enforcement’s own design. This concept of luring, which commonly takes the form of an undercover sting operation, is inconsistent with the legislative intent of the Act and defeats the overall purpose of “creat[ing] a drug-free school zone to reduce the occurrence of illegal drug activity in and around school facilities in order to enhance the learning environment.”

Mr. Bryant’s petition paints a heartbreaking picture of a law that was never intended for cases like his but which applied to him anyway.  In Davidson County, he notes, so-called “drug free” zones “cover[] almost every habitable portion of Nashville and [nearly] all of its urban core.”  As a result, based solely on a prosecutor’s discretion, the law can be applied “to virtually every drug sale that takes place in Nashville.”  Even so, in the approximately two decades since the law was enacted, only 62 defendants have ever been punished with the school zone sentencing enhancement in Davidson County, which upgrades a defendant’s conviction by a full felony class and renders defendants ineligible for parole for decades.  Although, as a general matter, the law has been used sparingly to punish dangerous or repeat offenders, Mr. Bryant’s petition notes that he has “the dubious distinction of being the only defendant in the history of this jurisdiction to receive Tenn. Code Ann. § 39-17-432’s sentencing enhancement for a first-time offense.”

Mr. Bryant’s petition also highlights the fact that “Davidson County’s own Grand Jury has observed that the [District Attorney’s] previous application of the school zone enhancement was arbitrary and capricious,” having formerly been applied in a way that turned substantially on a defendant’s poverty.  It explains:

“[G]iven the location-based nature of the sentencing enhancement at issue, Mr. Bryant’s sentence was also enhanced dramatically based on his poverty alone.  If, for example, Mr. Bryant had lived in a wealthy, residentially-zoned suburb like Belle Meade, then he likely would have been eligible for release after serving just two years and five months in prison for the exact same conduct.  Because Mr. Bryant lived in the Edgehill Housing Projects, however, Mr. Bryant must serve a mandatory minimum sentence of at least fifteen (15) years before he even becomes eligible for parole.”

Further, Mr. Bryant’s petition notes that before the new District Attorney reformed his office’s use of the school zone sentencing enhancement in 2014, “Davidson County’s application of Tenn. Code Ann. § 39-17-432 was unmistakably race-based.”  “Although there is abundant evidence that people of all races in Nashville use and sell drugs at roughly equal rates,” his petition explains, fully “87% of defendants in this jurisdiction who received enhanced sentences under Tenn. Code Ann. § 39-17-432 were people of color.”

Most importantly, however, Mr. Bryant notes that in the time since his conviction, Tenn. Code Ann. § 39-17-432 has been reformed both judicially and operationally to avoid precisely the type of strict liability penalty that applied in his case.  Consequently, if Mr. Bryant had committed the exact same offense today, then he would likely have been subject to a maximum sentence of between two and eight years in prison, rather than seventeen years.  Further, given his status as a first-time, non-violent offender, Mr. Bryant may well have avoided prison time at all.

Mr. Bryant has asked Davidson County Criminal Court Judge Steve Dozier to declare his sentence unconstitutional as applied to the unique circumstances of Mr. Bryant’s case, arguing that these circumstances render his sentence excessive under both the Eighth Amendment and Article 1, Section 16 of the Tennessee Constitution.  Mr. Bryant has also petitioned Judge Dozier for release while he submits an application for a pardon or commutation.  More than a dozen supporters—including Mr. Bryant’s own prosecutor, local politicians, business owners, friends, family members, and civil rights activists—have also filed affidavits in support of Mr. Bryant’s early release.  A hearing on Mr. Bryant’s petition is set for December 15, 2017 in Davidson County Criminal Court, Division 1.

“The fact that Tennessee law punishes first-time, non-violent drug sales more harshly than rape and murder is insane,” said attorney Daniel Horwitz, who is representing Mr. Bryant.  “Mr. Bryant was a promising young college student and a pillar of his community at the time of his conviction, and he made a single mistake that has already cost him a full decade of his life behind bars.  Mr. Bryant has more than paid his debt to society, and he deserves to be released.  This is the most unfair sentence I have ever seen.”

Read Mr. Bryant’s Verified Petition for Sentencing Relief here.

Selected Media Coverage

-Patch:  Nashville Case Highlights Drug-Free School Zone Reform Efforts

-Reason: How a Drug-Free School Zone Sent a Tennessee College Student to Prison For 17 Years

-Nashville Scene:  Council Members Petition Judge Over Drug-Free School Zone Case

-The Tennessean:  He got 17 years for selling drugs near school. Now 12 Nashville officials are fighting on his behalf

Selected Case Filings

–Calvin Bryant Petition for Sentencing Relief

–Appendix

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