A Tennessee law giving the AG more power over death penalty cases has been ruled unconstitutional

Earlier this year, the Tennessee legislature passed a new law allowing the attorney general, who is appointed by the governor, to take over all post-conviction death penalty proceedings from locally elected district attorneys.

That law, was ruled unconstitutional on Monday in an opinion from Judge Paula Skahan in Memphis.

The motion challenging the law was originally filed by Memphis-based defense attorney Robert Hutton on behalf of his client, Larry McKay, who is currently facing the death penalty. Shelby County district attorney Steve Mulroy quickly signed on and adopted the motion on the same day it was filed.

In that motion, Hutton argued that the law violates Article six, Section five of the Tennessee Constitution. That’s the part that says district attorneys are locally elected and represent the people in that district’s court, and it’s been in the constitution since 1853.

Judge Skahan sided with Hutton and the Shelby County district attorney, ruling that the law is unconstitutional.

“We’re very excited about the ruling, and I think that it’s an important check on what I would view as legislative overreach,” said Hutton. He added that this ruling is another example of how the courts act as a check on state lawmakers.

“Remember, they passed a bill about drag shows in Memphis that was struck down by a Trump-appointed judge, who said it was an unconstitutional infringement on speech,” he said. “The role of the court is really to make sure that the legislature stays in its lane. The legislature has a tremendous amount of power, but what they cannot do is usurp the powers of co-equal branches of government.”

It is likely that the attorney general’s office will file an appeal to overturn Judge Skahan’s ruling. However, Hutton anticipates that they will face pushback from district attorneys across the political spectrum.

“It’s not a conservative or liberal issue. There are very conservative DAs that are very aggressive with death penalty prosecutions, for example, that don’t want the state taking their jurisdiction.”