### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

anuary 10, 2001
STATE OF TENNESSEE v. ANTHONY WAYNE LANKFORD and CHRISTOPHER ARTHUR McKEON
Appeal from the Circuit Court for Tipton County No. 3781 Joseph H. Walker, III, Judge

No. W2000-00708-CCA-R3-CD - Filed February 23, 2001

This case raises issues of f

irst impression in Te

nnessee. The de

fendants are convicted felons from Montana who were sent to serve portions of their Montana sentences at a private, for-profit prison facility in Tennessee. Following their escape from the Tennessee facility , the defendants were each convictedof one count of escape, in violation of Tennessee Code Annotated Section 39-16-605. The defendants

now appeal their convictions, raising two interrelated issues: 1) w hether Ten nessee’s escape statute makes it a crime for a prisoner who has not been convicted under

Tennessee law to escape from a private prison in this state; and 2) whether they were unlawfully imprisoned i n Tennessee. After

a thorough review of applicable law, we conclude that Tennessee Code Annotated Section 39-16-605, by

it s plain langua ge, applies to the escape of an out

-of-state prison

er from a private prison facility

in this sta te. We further conclude that the defendants, duly convicted of crimes in Montana and incarcerated at the private prison pu rs uant to a contract between the Montana Department

of Corrections an

d a private pris

on com pany, were

not unlawfully

imprisoned in Tennessee. Accordingly, we affirm the judg ment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which J OE G. R ILEY and J OHN E VERETT W ILLI AMS , JJ., joined.
Gary F. Antrican, District Public Defender, S omerville, Tennessee, for the appellant, Anthony Wayne Lankford, and Micha

el W. Whitaker, Covington, Tennessee, for the appellant, Christopher Arthur McKeon.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennesse e.
OPINION-2-

The defendants are

prisoners from Montana who were convicted of esc

aping from a pri

vate prison facility in T

ennessee, in viola

tion of Tennessee

Code Annotated Sec

tio n 39-16-605. Following the denial of thei r motions for a new

trial, the defen

dants each filed

a timely app

eal to this court, both raisin

g essentially

the following two

issues:

I. WhetherTennessee’s escap e statute , Tennessee Cod e AnnotatedSection 39-16-605, is applica bl e to an escape from a privat e prison facility by an out-of-state pr isoner who has not been convicted of any crime in Tennessee; and

II. Whether

the defendants w

ere unlawfully

imprisoned in Tennessee.

A fter our review of the

record and appl

icable law, we c

onclude that Tenn

esse e’s escap e statute is broadenough to cover the escape from a private prison facility of an out-of-state prisone r, andthat the defendants were not unlawfully incarcerated in Tennessee. According ly, we affirm

the judgment of conv

ictions.

FACTS

In 1997 , in response to prison overcrowding, the Montana Department of Corrections , pursuant to authority

granted to it by

th e Montan a Legislature, contracted with Corrections Corporation of America (“C CA”), a private for-profit prison company, to have several hundred Montana prisoners serve a portion of their sentences at C CA’ s We st T enn ess ee De ten tio n Fac ili ty, locatedin Mas on, Ti pton C ounty, Tenne ssee. The de fenda nts, A nthon y Wayne La nkford and Christopher

Arthur McKeon, were among a group transferred under the terms of the contract from Montana State Prison to the Mason facility in the fall of 1997. Lankford, who had been convicted in Montana of o ne count of d eliberate h omicide by use of a dange rous weapon and one count of attempteddeliberate homicide by use of a dangerous wea pon, was serving a 220-year sentence. McKeon, convicted in Monta na of armed robb

ery and the

ft, was serving a fif

ty-year s enten ce. In addition, McKeon owed time to Oklahoma and I

owa for separa

te offenses comm

itted in those states.

On the afternoon of May 20, 1999, the defendants scaled two razor wire perimeter fences at the southern end of the facility and disappeared into a nearby wooded area. Despite a massive manhunt coordinated by the Tennessee Highway Patrol and involving a number of local and state law enforcement agencies, the defenda nts were not recaptured until one week later. Both were subsequently

indicted for escape from

a penal institution, in violation of Tennessee Code Annotated Section 39-16-605.

Trial was held on January 10, 2000. Steven Dotson, former assistan t warden of the Wes

t Tennessee Detention Facility, identified the defendants as two inmates who had escaped from the prison on May 20, 1999, and who had been recaptured in Shelby County, Tennessee , on May 27, 1999. Defendant

Christopher McKe

on testi fie d that he had never agreed to the transfer from-3-

Montana to Tennessee, and that his intention in leaving the facility had been to return to Montana. His understanding of

Montana law was that once sentenced to Montana State Prison, he was entitled to remain there unt

il “parole, disch

arge, or deat

h.” McKeon compla

ined that the Tenn

essee facility monitored inmate telephone calls, did not offe

r a course he wa

s required to comp

letebefore meeting with the Montana Parole Board, and paid inmates lower wages than those paid at Montana Stat e Prison.

The jury retur

ned guilty v

erdicts for both

defendants. The trial court sentenced Lankford as
a Range I, sta

ndard offender

to two year

s in the Tennessee

Department of Cor

rection, to

be served consecutively

to the Montana sentenc e he was curren

tly serving . McKeon was sent enced as a multiple, Range II offender to four y ears in the Tennessee Department of Correction, to be served consecutively to his prior sentences in Montana, Oklahoma, and I owa.
ANALYSIS
I. Applicability of Escape Statute

The defe ndants argue that the escape statute does not make it an offense for a M ontan a prisoner to esca

pe from a private

prison. Tennesse

e’s escape stat

ue reads:
(a) It i s unlawful for any person arrested for, charg ed with, or convictedof an offense to escape from a penal institution, as defined in § 39-16-601.
Tenn. Code Ann. § 39

-16-605(a) (19

97). Section 39-16

-601 reads, in pe

rtinent part:
As used in this part,

unless the context ot

herwise require

s:

. . . . (2) “Custody” means u nder arrest by a law enforcement office r or under restraint

by a public se

rvant pursuant to a

n order of a cour

t;
(3) “Escape” means unauthorized departure from custody or failure to return to custody following temporary leave for a specific

purpose or limited period, but does not include a viola tion of conditions of probation or parole; and
(4) “Penal institution,” for the pur poses o f this part, includes any institution or facility used to house or detain a person:
(A) Convicted of a crime; or-4- (B) Adjudicated delinquent by a juvenile court; or
(C) Who is in direct or indirect custody after a lawful arrest

. Tenn. Code Ann. § 39-16-601 (1997).

Lankford contendsthat he was not in “custody,” for the purposes of the statute, because the Mason facility, which does not house Tennessee prisoners, is not an agent of the State of Tennessee, andits emp loye es ar e nei the r la w en for cem ent off ice rs n or p ubl ic o ffi cia ls. If he was not in c ust ody, he argues,he cannot be guilty of escape, “the unauthorized depar ture from custody.” McKeon makes
a similar argument, assertingthat no Tennessee statute specifically addresses the situation at Mason, where a private

prison company has contracted with another state to house that state’s prisoner

s in Tennessee. McKeon suggests that his unauthorized d eparture from th e Mason facility

is properly the concern of

the State of Montana, rather than the State of Tennessee, and argues that Tennessee lacks jurisdiction to prosecute him for the offense. We disagree.

This issue is

a matter of

statutory interpretation, and thus, a question of law. Acco rdi ngly,
our review is de novo , with no presumption of correctness

given to the tria

l court’s judgme

nt. Warren v. American Holding Co. , 20 S.W.3d 621, 623 (Tenn. 2000). A court’s role in construing
a statu te is to asc ertain and give effect to legislative intent. Id. , Schering-Plough Healthcare Products, Inc. v. State Bd. of Equalization , 999 S.W.2d 773, 775 (Tenn. 1999). Whenever possible, legislative intent is to be ascertained from the natural and ordinary meaning of the langua ge used. Id. ; Carson Creek Vacation Resorts, Inc. v. State, Dep’t of Revenue , 865 S.W.2d 1,2 (Tenn. 1993). Further, a statute should be construed, whenever possible, so that its component parts are consistent andreasonable. State v. Odom , 928 S.W.2d 18, 30 (Tenn. 1996); Cohen v. Cohen , 937 S.W.2d 823, 827 (Tenn. 1996). Finally, statutes should be construed in the light of reason. Voss v. Shelter Mut. Ins. Co. , 958 S.W.2d 342, 345 (Tenn. Ct. App.), perm. app. denied(Tenn. 1997).

We begin our analy

sis of this issue by recognizing that the Tennessee Attorney General’s Office has ex pressed the view that t he language of the escape statute is broad enough to cover the escape of an out-of-state prisoner from a private prison in this state, including one wh ich houses only out-of-state

inmates. See Tenn. Op. Att’y Gen. No. 98-232 (1998). The plain language of Tennessee Code Annotated Section 39-16-605 makes it “unlawful for any person . . . convicted of an offense to escape from a

penal institution,” defined in § 39-16-601(4) a s “any institu

tion or facility

used to house or detain a person . . . convicted of a crime[.]” When determining legislative intent, the words of a statute should be given their common and ordinary meaning. State v. Levandowski , 955 S.W.2d 603, 604 (Tenn. 1997) (citations omitted). As written, the statute clearly applies to these defenda

nts.

We relied on the statute’s plain language in State v. Holm es , 995 S.W.2d 135, 140 (Tenn. Crim. App. 1998), perm. app. denied(Tenn. 1999), cited by the State, to determine that the status of the prisoner

is irrelevant to

a prosecution for escape. The defendant in Holmes escaped from the Chester County Jail, where he

was being held p

ursuant to a contr

act with the United States Marshal Service. Id. at 138. He appealed his subsequent conviction for escape to this court, arguing that his-5-

status as a federal prisone

r deprived the Sta

te of Tennessee

of jurisdiction to pr

osecute him

for the offense. We rejected the argument, noting that the escape statu

te is couched in g

eneric, non-spe

cific terms:

It

is noteworthy that nowhere within the statute is there an explicit requirement that custody be for a state offense. Nor is there any indication that

a prisoner’s sta

tus should

be relevant to the escape inq uir y. In fact,

the statute is phra

sed in generic

terms which tend to negat e that very suggestion. It enc ompasses a person convicted of “an offense,” not

“a state offense.” It requires custody to be pursuant to the order of “a court,” not “a state court.”

Id. at 140 (emphasis in original).
We conclude that the status of the prison, like the status of the prison er, is irrelevan t to prosecution under the escape statue. The statute, which speaks in broad

terms of “ any institution .

. . used to ho use or detain a person . . . convicted of a crime,” Tenn. Code Ann. § 39-16-601(4) (1997) (emphasis added), nowhere requires tha t the esc ape occur from a state, county

, or city institution, as opposed to a private, for-profit facility. To the contrary

, elsewhere in th

e Code it is made clear that our Legislature intended tha t prisoner s housed in private prisons in Tennessee be subject to prosecution under the statute. The Private Prison Contracting Act of 1986, which covers the contractual housing of T ennessee prisoners in private prison facilities, specifically makes Tennessee prisoners housed in private prisons

subject to prosec

ution for felo

n y escape. “The provisions of title 39, chapter 16, including, without limitation , § 39-16-201 and §§ 39-16-605 – 39- 16-608 shall

apply to offenses committed by or w ith regard to inmates assigned to facilities or programs for which a prison contractor is providing correctional services.” Tenn. Code Ann. § 41- 2 4-108 (1997) (emphasis added). Tennessee Code Annotated Section 41-24-116, “Escape from private prison or facility

,” holds private pr

ison officials re

sponsible for imme

diately rep orting to local and state authorities the escape of a prisoner from a private prison. Tenn. Code Ann. § 41-24- 116 (1997).

There is nothing in the es cape statute

to support treating out-of -state prisoners

housed in private prison facilities

differently

from in-state pri

soners housed in sim

ila r faci lities. The defe nda nts were no less in “custody,” for the purposes of the statute, than would be a Te nnessee prisoner housed in a private facility pursuant to a contract between the Tennessee commissioner of correctionand a pri vat e pri son com pan y. Cu sto dy is defi ned as “u nde r arr est by a law enforcement officer or under restraint by a public servant pursuant to an order of a court.” Tenn. Code Ann. § 39- 16-601(2). Custody need not be direct. See Tenn. Code Ann. § 39-16-601(4)(C) (1997) (defining “penal institution” as facility used to house a person who is “in direct or indirect custody ” after lawful arrest) and Tenn. Code Ann. § 41-2 4-102(5) (1 997) (defin ing “ prison co ntractor” as “any entity entering a con

tractual agre

ement with the comm

issioner to provide

correctional se

rvices to inmates under the custody of the department”).1 The defendan ts were returne d to Mo ntana shortly after their January 1 0, 2000 trial. All other Montana i nmates
were apparen tly returned in the fa ll of 1999, at the end of the contract term between CCA and the Montana Department of Correc tions.
-6- It is undisputed that the defendants had been convicted of felonies in Montana, and that they hadeach been

sentenced to lengthy prison terms for those convictions.

It is also undisp

uted that it
was the Montana Depa

rtment of Correc

tions w hich caused the d

efendants to be “

under restraint

” in Tennessee, by contracting to have them serve a portion of their Montana sentences at the Mason faci lit y. Montana Code Annotated Section 53-30-106, aut h orizing the Montana Department of Corrections to enter

into contracts with private prison corporations for the confinement of selected prisoners in private prisons, states that “[p]ersons committed to the department .

. . remain in the department’s legal custody . . . .” See Mont. Cod e Ann. § 53-30-106(1) (1999). Thus, the defendants’ escape from

the Mason facility

constituted an unauthorized departure “from custody,”
as defined in the statute. See Wisconsin ex rel. Johnson v. Sullivan , No. 00-1922, 2001 WL 25816, at *2 n.4 (Wis. Ct. App. Jan. 11, 2001) (concluding it is not inconsistent that Wisconsin prisoners housed in private prison in Tennessee are subject to Tennessee law while at the same time remaining under the custody of the Wisconsin Department of Corrections).
In sum, we ag

ree with the State

that a conviction f

or escape under

Tennesse

e Code AnnotatedSection 39-16-605 requires n

either t hat the inmate have been serving time for a conviction in Tennessee, nor that he escape from a public facility. The de fenda nts, co nvicted Montana felons housed by contract in a private prison facility in this state, met the elements of the statute by their unauthorized departure from the Mason facility

.

II. Legality of Defendants’ Incarceration in Tennessee

The defendants next raise the issueof whet her they we re unlawfully

imprisoned in Tennessee

. 1 The defendants’ arguments on this issue overlap with their arguments against the applicability

of the escape statu

te to out-of-state

prisoners housed

in private

facilities in this state. They assert that their transf

er from Montana St

ate Prison to the Ma

son facility

without their

consent violated their due process righ ts under both the United States and Tennessee Constitutions. Lankford argues that Montana’s power to incarcerate him ends at its borders, and compares his incarceration in the Mason facility to involuntary servitude. McKeon use s the terms “banishment” and “kidnappi ng” to describe his tra nsfer from Monta

na to the Mason fac

ility without hi

s consent, and
accuses Tennessee of aiding and abetting in Montana’s criminal actions by prosecuting him for escape. Both defendants

point out that no Ten

nessee statute sp

ecifically authorizes the detention of out-of-state

prisoners in priva

te prison facilities

in Tennessee, an

d argue that the

y cannot law

fully have been imprisoned in the Mason facility without Tennessee’s express permission. According to the defendants’ reasoning, with out Tennessee’s

express a uthorization, and with Mont ana’s alleged lack of authority to imprison them in this state, they were not in “custody” for the purposes of the escape statute and, thus, cannot be guilty of esca pe fo r th eir una uth ori zed dep art ure f rom the faci lit y.-7-

Most of these arguments have previously been raised by other prisoners and rejected by other court s. In Olim v. Wakinekona , 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 ( 1983), a cas e involving the transfer of

a Hawaii prisone

r to a prison in

California, the UnitedStates Supreme Court held that an interstate prison transfer does not deprive an inm ate of any liberty interest under the United States Constitution. Id. at 245, 103 S. Ct. at 1745. Observing that “[o]vercrowding and the needto separate particular prisoners may necessitate interstate transfers[,]” and that “[s]tatutes and interstate agreements recognize that, from time to time, it is necessary to transfer inmates to prisons in other States,” id. at 246, 103 S. Ct. at 1746, the court co ncluded that “an inmate . . . has no justifiable

expectation that he will be incarcerated in any particular State.” Id. at 245, 103 S. Ct. at 1745. The Court wrote:

In short, it is neither unreasonable nor unusual for aninmate to
serve practically hi s enti re sentence in a State other than th

e one in which he was convicted and sentenced, or to be transferred to

an outof-st ateprison after ser

ving a portion of

his sentence in his

hom e State. Confinement in another State, unlike confinement in a mental institution, is “within the normal limits or range of custody which the conviction has authorized the State to impose.”

Id. at 247, 103 S. Ct. at 1 746 (quoti ng Meachum v. Fano , 427 U.S. 215, 225, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451 (1976)).
Following Olim , fe deral and state c ourts have routine

ly held that p

risoners’ due pr

ocess r ight s are not implicated by

their transfer t

o a prison in anothe

r state, including

to a private prison which contracts to house them for their convicting state. See e.g. Pischke v. Litscher , 178 F.3d 497, 500 (7th Cir.), cert. denied , 528 U.S. 954, 120 S. Ct. 380, 145 L. E d. 2d 296 (1999) (challenging Wisconsin

statute authorizing prison authorities to contract for housing of Wisc

onsin prisoners in private prisons in other sta

tes) (“A prisone

r has a legally

protected inter

est i n the conduct of his keeper, but not in the keepe r’s identi ty.”); Montez v. McKinna , 208 F.3d 862, 865-66 (10th Cir. 2000) (challenging transfer from Wyoming State

Prison to private f

acilities in

Texas and Colorado) (“This court has determ

ined that neither

the United States Co

nstitution nor any

federal law pro

hibits the transfer of an inmate from one state to another.”) ( in ternal quotations

omitted); Lambert v. Sullivan , 35 F.Supp.2d 113 1, 1133 (E.D . Wis. 1999) ( challe nging propose

d transfer from Wi

sconsin StatePrison to private pr ison in either Texas or Tenness ee) (“Simply put, federal constitutional guarantees,

such as the right to due process, are not implicated by

[interstate prison] transfers”); In re Matteson, 12 P.3d 585, 593 (Wash. 2000) (protesting transfer from Washington State Pr

ison to private prison in Colorado) (“[P]risoners do not have a right to be housed in a certain prison or even a certain state.”

); Evers v. Sullivan , 615 N.W.2d 680, 686 (Wis. Ct. App. 2000) (seeking declaration that proposed transfe

r from Wisconsi

n State P rison to private out-of-state facility was unconstitutional)

(“[P]rison inmates have no constitutionally protected liberty interest in not being transferred

from one pri son to anot her, even if the transfe r results i n gr eater restrictions on the prisoner’s freedom.”).-8-

Arguments

that the convicting state loses jurisdiction over its prisoners when it sends them beyond its borders, or unconstitutionally extends its sovereignty by contracting for t

he m to be housed in another state, have also been rejected. In Evans v. Holm , 114 F.Supp.2d 706 (W.D. Tenn. 2000),
a prisoner assigned to the Mason facility argued that he wa s entitled to an unco ndition al release, asserting that his convicting state had waived jurisdiction over him by transferring him to the private prison out-of-state. Id. at 707. The di strict cour t observed that “[i]t is a popular myth among prisoners that a

state’s authority over a prisoner ends at the state’s geog raphical border[,]” id. at 711, noting that it had reject

ed similar argu

ments from CCA

prisoners “well over

a dozen times.” Id. at 708. After

reviewing the law regarding interstate prison transfers, the district court rejected Evans ’ claim as wel l, writing:

The sense of this entire body of caselaw is that a

prisoner simply has no right to compla

in if the state

decides to house him outside i ts borders, or even if he is actually transferred between va rious jurisdictions,

each of which has convicted him.Only when a prisoner is released for so

me time through no

fault of his own has there ever even been a question raised about a possible due process violation.

In this case, Evans has no such claim. He clearly has not been released. Equally clearly, he has not eve n been t ransferred to the custody of another sovereign. The State of Wisconsin ha s simply contracted to hou

se him outside its boun

daries.

Id. at 713.

In a recent case, Wisconsin ex rel. Johnson v. Sullivan , No. 00-1922, 2001 WL 25816 (Wis. Ct. App. Jan. 11, 2001), a

prisoner transf

erred from Wiscon

sin to a CCA facility in Tennessee argued that the transfer violated the supremacy clause of the United State s Constitution by extending Wisconsin’s jurisdiction beyond its border s. The court summarily rej ected this argument, wr iting:

Fir st, Wisconsin has not exte nded its territori

al limit s b y contracting with a Tennessee prison to house Wisco

nsin prisoners. Tennessee has authorized private entities such as the Correc tiona l Corporat ion of America to do b usiness within its sta

te. It could withdraw its authorization if i tchose to do so. In the meantime, prisoners who are housed in Tennessee are

subject to Tennes see laws.

Id. at *1-2.

The State of Montana, like th e State of Wisconsin, contracted to have its prisoners serve portions of their state sentences at a private prison i n Ten nessee. In so doing, it merely deleg ated its responsibility to incarcerate to a private prison operating in this state; it did not wai ve it s2 Although McKeon testi fied at trial that he believe d Montana law pr

ohibite d his tr ansfer from Monta na State Prison, he li

mited arguments

on appeal to alle

ged violations

of federal and Tennes see law.

3 W e ag ree with the State that any specific allegati

ons that Montana violated the defendants’ right s unde r Montana state law by

its decis ion to transfer them without the ir consent nee d to be raise d in another forum. The State of Tennessee was not a part y to the cont

ract between

CCA and the Montana D epartment of Corrections, and had no part in the de cision to trans

fer th ese defen

dants t o the fac ilit y in Tennes see. We confi ne oursel

ves here t

o a determi

nation of whether the d efendants’ inca rceration at the Mason facility w as lawful, such a s to make their conviction under the escape statute proper.
-9- jurisdiction over th e defendant s, did not relinquish legal custody

of them, and did not e

xtend its sovereignty into the State of Tennessee.

A few courts have placed limits on the transfer of state prisoners to out-of-state fa

cilities. They have done so, however, based not on federal law, but on provisions of law of the sending state. In Ray v. McCoy , 321 S.E.2d 90 (W.Va. 1984), the Supreme Court of Appeals of West Virginia

held that the imp ris onm ent of s tat e pri son ers beyo n d the borders of the state without their consent violated the transportation clause of the state constitution, which sta tes that “ [n]o person shall be transported outof, or forced to leave the State for any offense c ommitted within the same.” Id. at 92. In Brandon
v. Alaska Department of Corrections , 938 P.2d 1029 (Alaska 1997), the Alaska Supr eme Court held that an Alaska prisoner’s transfer out-of-state may

be judicially

reviewed to

determine if it complies withthe prisoner’s rehabilitation rights under the state constitution . The Al aska Department of Corrections had ordered Brandon, a state prisoner, transferred to a private facility in Arizona in order to alleviate local prison overcrowding. Id. at 1030. Brandon appealed the decision, arguing that the transfer interfered

with his rehabilita

tion because

it removed him too far from his family. Id. The Alaska Supreme Court reversed the superior court’s dismissal for lack of jurisdiction, holding that judicial review of the administrative decision was a ppropriate because the transfer involved an alleged violation of Brandon’s state constitutional right to rehabilitation. Id. at 1033.

The defendants in

the case at bar do not argue that their transfer to Tennessee violated any provision of Montana law, 2 and this court would notconsider the arguments if they had. 3 Instead, the defendants argue that their incarceration in a private prison in Tennessee violated provisions of the Tennessee Constitution. Specifically , Lankford a

sserts that his

incar cerat ion vi olate d arti cle I, secti on 8, which states tha t “[n]o man shall be ta

ken or imprisoned,

or disseized of his

freehold , liberties or privileges, . . . , but by the judgment of his

peers or the law of the la nd[, ]” and artic le I, section 33, which states that “[s]lavery and involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, are forever prohibited in this State.” Tenn. Const. art. I, §§ 8, 33 . We find these arg uments to be wholly

without merit.

The defendants, incarcerated at the Mason facility to serve time on their Montana

sentences,
were clea rly imprisoned by the “judgment of [their] peers” a nd by “the law of the land. ” Furthermore, their incarceration in Tennessee for crimes for which they had

been duly c

onvicted in Montana, in no way con sti t uted “involuntary servitude” or slavery . Article I, Section 33 of the Tennessee Constitution expressly al lows for the impriso

nment of those

convicted of a crime. The-10-

Seventh Circuit Court of Appeals rejected a similar argument in Pischke . There, Wisconsin inmates challenged

their transfers

to a private priso

n in another state

as a violation of th

e Thirteenth Amendment

to the United States Constitution, prohibiting involuntary servitude. Noting

the express exception in the Thirteenth A mendment for per

sons imprisoned pur

suant toconviction for a crime, the Court char acterized the cla ims as “thoroughl

y frivolous,” admonishing, “ Let Wis consin prisoner s have no doubt of the comp lete lack of meri

tof their Thirteenth Amendment claims.” Pischke , 178 F.3dat 501. We find L ankford’s arg

uments on this issue,

as well as McKeon’s assertion that Tennessee i s aiding and abetting th e criminal a ctivity of Mon tana, to be u nconvinci ng.

Last ly, the defendants

argue that their detenti

on in the Mason fac

ility was unla

wful because
no Tennessee statu

te expressly authorizes the incarceration of out-of-state prisoners in private prison facilities in this state. We agreethat no Tennessee statute specifically addresses the situation at the Mason facility. We di sa gree, howeve r, that the lack of

a specific statut

e makes the defe

ndants’ incarceration unlawful.

Some states have e

nacted specific

laws governingthe operation of private prisons housing prisoners from other jurisdi ctions within

their borders, while others have not. Arizona, Idaho, and Oklahoma

require private

prison facilities

housing out-of- state inmate s to co mply with spec ific statutory provisions in order to opera te within their states. See Ariz. Rev. Stat. Ann. §§ 41-1681 to -1 682 ( West 1999); Idaho Code § 20-807 (2000); Okla. Stat. Ann. tit. 57, § 563.2 (West 2000). Mississippi specifically authorizes the housing of out-of-state i nmates atprivate prisons in two Mississippi counties. See Miss. Code Ann. § 47-4-1 (1999). We st Virginia and Co

lorado expressly prohibit the operation of

private prisons housing out-of state prisoners within their borders without the express written approval of specific state officials. See W.Va. Code § 25-5-5 (1990 ); 7 C olo. Rev. Stat. § 17-1-104.5 (1999). Kansas and North Carolina forbid the operation of private prisons housing prisoners from oth er jurisdictions w

ithin their border

s, unless ex pressly authorized by statute. See Kan. Stat. Ann. § 75-52, 133 (1997); N.C. Gen. Stat. Ann. § 148-37.1 (2000).

The defendants are correct that there are no Tennessee statutes which specifically cover the housing of ex clu siv ely o ut-o f-state prisoners in private prison facilities within the state. That the practiceis not specifically authorized by statute, however, does not make the practice unlawful. As the Tennessee A

ttorney Ge

neral’s office

noted in its 1998 opini

on on the subject:
Arguments

exist for the legality of housing out of state prisoners by private prison management companies. No Tennes see s tatute prohibitsthis business; thus, it can be argued that it is not against the public policy of thi

s state to operate such a business. Furthermore, if Tennessee officials know that p rivate facilities are housing out of state prisoners and take no action to regulate the activity, it may be argued that the

state’s tacit app

roval of the prac

tice reflects a

public policy that accommodates the practice.-11-

Tenn. Op. Att’y Gen. No. 98-232 (1998). Thus, while Tennessee, unlike some states, has no statutes expressly permitting the operat ion of private pri

sons housing out-o

f-state prisoner

s w ithin Tennessee , it also, unlike other

states, has no stat

utes expressly

prohibiting the pr

actice without e

xp ress authorization by

law. Corrections

Corporation of Ame

rica is registe

red todo business within thi s state, and is not concealing the fact that it houses out-of-state prisoners at private prisons within our borders. We therefore conclude that the defendants’ incarce ration at the Mason facility was not unlawful.

CONCLUSION

We conclude that the plain language of the escape statute, making it unlawful for a person convictedof a crime to escape from a penal institution in this state, requires neither that the prisoner have been convicted of a

crime within this state, nor that the escape occur fr om a public

facility . We further conclude that nothing in Tennessee law prohibits the operation of a

private prison wit

hin this state which house

s only out-of

-state prisoners . Therefore, th e defendants’ unauthorized departure from the Mason facility satisfied the elements of the escape statute, making their

convictions under the statute proper. Accordingly, the judgment of the trial cour t is affirmed.

___________________________________ ALAN E. GLENN, JUDGE