State Sen. Lee Harris is criticizing a new law sponsored by Senate Majority Leader Mark Norris enabling state judges to consider a convict’s immigration status during sentencing.

Harris, a Memphis Democrat, expressed disappointment in Gov. Bill Haslam’s decision to sign Senate Bill 1260 into law, saying it would give judges authority to enhance prison sentences based on a defendant’s national origin.

The measure would “encourage” judges to consider where a person was born when meting out prison time, Harris said, thus treating a defendant born in Mexico “more harshly” than a person in Tennessee, even if they commit identical crimes. Harris also questions whether similar laws have been struck down in other states.

“This kind of bill may make for good headlines and give the veneer of toughness on crime. But, really, it just sends a powerfully negative signal to those born in Mexico, whether in Tennessee legally or not,” Harris says. “In fact, the governor has sent a powerful signal to all Tennesseans. The message from the governor’s act is that there is real reason to be a little more suspicious about the fairness of our judicial system and whether it will be faithful to the rule of law.”

Harris contends the nation’s democratic institutions and traditions rejecting different treatment based on a person’s national origin are “vanishing.”

Norris, a Collierville Republican who sponsored the bill this session, says he wasn’t trying to be “mean-spirited” in giving judges another sentencing enhancement factor to consider if a person is in the country illegally. It will be one of about 12 factors judges can look at when setting sentences, he points out.

“It’s already a factor that’s taken into account on the front end of the process as it relates to issuing bail and bonds,” Norris says. “And I think it’s worthy of consideration at the time of sentencing.”

Before the legislation was signed into law, immigration advocates and other Democrats said it would put state judges in the position of determining whether a person holds legal status. Other critics accused Norris of trying to push the measure through the Legislature in its final days.

Norris, though, says the decision on a person’s immigration status won’t be up to a state court judge, because it will be established at the time of sentencing through any number of resources.

“This isn’t trying to determine in the first instance who is lawfully and unlawfully here,” Norris says. “This is somebody who is charged and tried and convicted of a crime and at the time of sentencing whether they may consider it for enhancement or otherwise really.”

Norris argues the new law is not similar to an Arizona case dealing with immigration because it doesn’t ask a state agency or official to get involved in an area pre-empted by the federal government. He did not ask the attorney general for an opinion on the bill because he didn’t think it rose to that “level of concern.”

The Senate leader did consult with District Attorney General Mike Dunavant of West Tennessee on potential sentencing enhancement for criminal aliens. A letter from Dunavant, legislative liaison for the District Attorneys General Conference, points out state law sets up a process for verifying citizenship status and reporting to Immigration and Customs Enforcement by a county sheriff during an initial jail booking for new crimes.

Another state law requires judges to consider whether a defendant charged with a crime “is not lawfully present in the United States as a presumption that the defendant is a risk for flight, purposes of setting the amount of bail,” Dunavant’s letter states.

“This clearly indicates that our current state law properly allows for law enforcement to determine citizenship status upon booking, and for our courts to enhance bail amounts based upon that unlawful presence in this country,” the letter states.

As a result, Dunavant says he believes Norris’ bill was constitutionally sound and “distinguishable” from the Arizona case.

Sam Stockard can be reached at [email protected].