RUTHERFORD CO., Tenn. (WKRN) — A Tennessee judge illegally jailed children at a rate nearly 10 times higher than the state average even when there was no crime committed, according to a report from WPLN and Propublica.

Judge Donna Scott Davenport instituted a policy that all children charged with crimes be processed at the detention center, the report says. In 2016, 11 Black elementary school children were detained and/or locked up after allegedly witnessing a fight between a 5- and 6-year-old.

The supposed infraction was “criminal responsibility for conduct of another” — a fake law.

“There has to be something done to everyone who was involved in this,” said Rep. Gloria Johnson (D-Knoxville). “It’s my understanding that they created a law that wasn’t even on the books in order to make that happen.”

Davenport, the sole Rutherford County Juvenile judge, is also facing scrutiny over a “filter system” which allegedly allowed jail staff to determine which children to hold.

Under the filter system, police would bring children they arrested straight to jail, where staff could decide whether or not to hold them until their detention hearing, which might take days, the report found. Children who had done something as minor as skipping school might find themselves behind bars.

The system allegedly allowed the detention center to jail children who staff determined to be “unruly,” which was defined as “a TRUE threat.” There was no definition, however, for what “a TRUE threat” actually meant.

“That is horrible abuse of power,” Johnson said. “We have the Administrative Office of the Courts, I believe they should take action and investigate.”

“You can’t make up the law,” said James McCarroll Jr., senior pastor of First Baptist Murfreesboro. The church held the first community meeting following the arrest in 2016.

“We have a responsibility to all of our citizens to give them a system that looks out for them, that allows them not only have a constitutional right but to have people who are assigned to carry out that constitutional right who have hearts to make sure that people are in the best state and space that their lives could have,” said McCarroll.

Multiple Rutherford County commissioners say because of pending litigation, they cannot comment.

In 2014, 48% of cases resulted in kids being jailed under Davenport’s watch. The statewide average at the time was 5%, the report found.

“We are letting kids fall through the cracks in all different ways and this is just one more way we have discovered where [Tennessee’s Dept. of Children’s Services] has dropped the ball and they need to be looking closely at these programs to make sure that they are following our laws,” Johnson said.

In 2016, lawmakers called for a federal investigation into the arrest and detainment of Black elementary school children in Rutherford County. Representative John Ray Clemmons (D-Nashville), who was among those lawmakers in 2016, released the following statement this week:

“As I stated in 2016, there is no rational justification for any of this in our society. Both the state and county have obviously failed children and families, predominantly Black individuals, in this and countless other ways. This has notably been true throughout American history in our legal and penal system, and it’s way past time to reevaluate the structural framework which allows such instances of inequity and injustice. Those of us in whom the public has placed its trust have a duty to correct the multi-layered legal and administrative issues facilitating this type of unchecked barbarism. Looking ourselves in the mirror as decision-makers within an inherently flawed system, we must admit that we’ve failed too many for far too long. As an attorney, I am limited in sharing my personal opinion on sitting judges, but these individuals, through their own acts and admissions, have proven themselves wholly unfit for the important positions they currently hold.”

In a settled lawsuit in 2017, Rutherford County agreed to pay out $397,500 to the 11 children. The officer who signed off on the charges was suspended for just three days.

“It’s a horror show plain and simple, it’s abusive and it doesn’t even resemble law,” said Sen. Jeff Yarbro (D-Nashville).  

As of Monday afternoon, Gov. Bill Lee, Speaker of the House Cameron Sexton and Lt. Gov. Randy McNally, all Republicans, did not respond to request for comment on if the legislature should take this issue up in the next regular legislative session.