Tennessee’s Indigent Representation Task Force: We Win

Ed. Note: This is a post by former Fault Lines contributor and Knoxville criminal defense lawyer, Chris Seaton.

Indigent representation is a topic near and dear to my heart. If you are truly poor enough that you can’t afford reasonable attorney fees, you should have a competent attorney appointed to zealously represent you. That attorney should also be fairly paid for his or her time.

Unfortunately for Tennessee attorneys and defendants, the General Assembly doesn’t share my enthusiasm. It’s easier to appease your constituency and look tough on crime by deciding to not give a shit about people charged with a criminal offense. That’s why Tennessee, for a very long time, kept indigent representation on the low end of the state’s budget.

Turning a blind eye to Tennessee’s indigent defense crisis saw a mass exodus of experienced attorneys from taking court appointed cases. Creating a contract bidding system for juvenile court cases and capping indigent representation at 2,000 hours per year made it more viable for lawyers to focus on marketing and networking instead of taking court appointments.

That’s why I was surprised in October of 2015 to see the Tennessee legislature propose the creation of an “Indigent Representation Task Force.” At the time, I called bullshit because not a single person on the Task Force had any skin in the game when it came to indigent representation.  Grasping the basic mechanics required closed-session meetings with PowerPoint presentations.

My remarks, that the Task Force was nothing more than a show for public consumption, reached the desk of William Koch, a former Tennessee Supreme Court Justice, dean of the Nashville School of Law, and head of the Indigent Representation Task Force. He wrote me and gave me full permission to publish the letter in full at Fault Lines. Bill would include a remark about the General Assembly’s love of indigent defense he’d later greatly regret.

Because you seem to value honesty, permit me to provide you with this reality wake- up call. If you ask just about any current member of the General Assembly, they will tell you that the annual appropriation to fund indigent representation programs is among the least popular appropriation they make every year. In fact, many legislators lean toward cutting this appropriation, and it has been a challenge for quite some to maintain the status quo. I mention this only to help you understand that there is no chance — no chance — that the General Assembly will agree to appropriate more money to fund the current system. Thus, any proposal to increase the current appropriation for the purpose of increasing the hourly rate paid to private attorneys appointed to represent indigent criminal defendants is and will continue to be dead on arrival. (My emphasis.)

I called Bill Koch and took him up on his offer to speak at the Knoxville stop of the Task Force’s “Listening Tour.” Scott Greenfield and I hatched a plan for that day that was certain to get their attention. I prepared a statement for my “presentation,” sent the statement to every media contact I had in the region, and even did an hour on local talk radio on indigent defense.

I was nervous when the Listening Tour arrived in Knoxville. This would be a day I pissed off almost every powerful person in the state with ties to the legal system. I brushed my nerves aside, walked into the UT College of Law, and called the Task Force what I believed it to be: a dog and pony show designed to appease the state’s lawyers and judges who complained for years about the way poor defendants were treated.

Adherence to the Constitution requires adequate funding. It isn’t satisfied by pretending to care. Either you will honor the Constitution by funding indigent defense, or you will fail the people of this State, but you will no longer trick them by putting on a show.

I left immediately after my presentation. My nerves were shot. By the time I reached my car, the phone was ringing. It was Aaron Campbell, the producer of my radio show. He told me once I left the entire room turned on the Task Force, with one local attorney demanding we burn down the entire system starting with bail reform.

Last Tuesday, curiosity got the better of me, and I revisited the Task Force’s website to see if they’d accomplished anything or if my statements proved true. I stumbled on a draft copy of the recommendations they will propose next month to the Tennessee General Assembly. Saying I was stunned would be an understatement. “I nearly had a heart attack” better describes my mental state.
Here are a few of the Task Force’s proposed recommendations:

  • An increase in court-appointed counsel pay to “no less than $75 but no more than $125 per hour.”
  • Elimination of the “in court/out of court” time distinction and elimination of fee caps on cases.
  • Creation of a “release valve” for attorneys close to the 2,000 hour per year mark so defendants would not have to worry about their attorney giving up on their case due to nonpayment.
  • Establishment of a certification process so attorneys seeking court appointments would be qualified based on their training and expertise.

Lawyers aren’t the only winners here. The task force threw a few bones to the state’s poor.

  • The Task Force recommends treating driving on a revoked license and failure to pay criminal fines and fees as a civil matter, rather than criminal.
  • A complete overhaul of Tennessee’s commercial bail bonding system, including reconsidering circumstances when defendants should be released on their own recognizance.

The General Assembly will face a difficult decision in April. They will either accept the recommendations of the Task Force they created or turn a blind eye and deaf ear to the legal professionals tasked with fixing the state’s indigent representation problem. Rejecting the proposed recommendations means in 2018, seats up for reelection will face a very dangerous, organized opposition in Tennessee’s private Bar.

When people close to me learned of my plan to call out the Task Force, they begged me to reconsider. They asked me to be “nice,” as this was Justice Lee’s pet project. One lawyer said what I planned to do was career suicide. Disregarding those pleas meant that in April, the Indigent Representation Task Force will recommend dismantling the current system and overhauling it for the betterment of lawyers and defendants statewide.

A wise man once said “If you’re gonna be dumb, you’ve gotta be tough.” One dumb country lawyer was tough enough to breathe fire and brimstone down the necks of some very powerful people and move them to change indigent representation for the better.

You’re welcome. We win.

25 thoughts on “Tennessee’s Indigent Representation Task Force: We Win

  1. PA

    Thank you. Thank you for having the cajones to stand up and speak truth to power. Not many can. We the People are in your debt.

    1. CLS

      You’re welcome. Someone had to do it. My time in the system taught me playing nice, clutching at pearls, and saying “please” wasn’t getting anything done.

  2. Billy Bob

    Good job, country lawyer Cris Seaton. We’re proud of you. We know of a couple of northern state legislatures around here that could utilize your insight and services.
    One tough country lawyer showed the strength of his convictions. How rare is that? Where there’s a will, there’s a way. Good luck. Maybe things will get better. They should get a whole lot better than they are now,
    and not just Tennessee and Texas.

    1. CLS

      Thanks. I wish more would stand up to their convictions. Privately whining and moaning about how “bad” the system was didn’t accomplish anything.

      And if said Northern legislatures are interested, there’s a way to find me. I hear Wisconsin’s got it pretty bad. Maybe I need to piss off a few people there next.


    Chris, I am not surprised that you acted courageously. I am not surprised that SHG was a member of the conspiracy either. Now it is up to the organized bar to engage in a “jihad for justice.”

    Let me know how this all turns out. All the best.


    1. CLS

      Judge, as usual, you’re far too kind. You also shouldn’t be surprised SHG was in on this either, given how long you’ve known him.

      And now it will be a “jihad for justice.” All eyes are on the General Assembly. Those who turn a blind eye and deaf ear to the Task Force’s recommendations will have a tough time getting re-elected in 2018. Shoot, I might even show up to a few town halls and rallies to ask the state’s elected officials why they care so little about the poor.

      I’ll keep you posted.

      1. Scott W Jacobs

        They care so little about the poor because the poor don’t vote.

        And they won’t have nearly as hard a reelection run than if they helped out the rapists​, wife-beaters, and drug dealers. There is simply no way you’ll get a majority of politicians to commit carreer suicide by helping the defense.

        1. SHG Post author

          That’s the challenge. If you give up before trying, you’re guaranteed to lose. So you wouldn’t bother to try because it’s going to be a damn hard fight? That’s the difference between people who accomplish things and people who shrug and walk away from a fight because it’s too hard.

          1. Scott Jacobs

            Respectfully​, I disagree.

            Of course the fight is important, but calling this a win is like Eisenhower calling D-Day a victory merely because everyone managed to get on the ships, before they even left England. Or MacArthur claiming he had won moments after declaring he would return.

            I’m not saying he was wrong to stand up, I’m saying he’s wrong to declare victory already.

            1. SHG Post author

              You’re not being paid per bad analogies. Appreciate winning a battle. We lose most of them. And there’s nothing to gained by denigrating the rare win except to provide comfort to the other side. They’re comfortable enough without your help.

  4. Scott Jacobs

    How is this an actual win?

    Sure, it took balls to stand up to the committee, but this recommendation doesn’t do anything. The judge told you how this would end in his original letter – the legislature isn’t going to improve funding or do anything substantial with bail because they like getting reelected.

    And the judge probably doesn’t actually “regret” his comments, since he probably hasn’t lost any sleep or money as a result.

    You say that failure to act on these recommendations will incur the wrath of the private bar, but if the private bar had actual pull these reforms would have happened ages ago. No, legislatures fear police unions, and they fear their voters, and no legislator ever lost election because they didn’t help poor criminal defendants – hell, cutting funds would probably get them more votes, because the feckless masses love them some “tough on crime.”

    Do I hope the reforms get adopted and put into law? Of course I do.

    I’m just aware enough that I think celebrating now is pointless. You stood up for your convictions. Good for you, you did what an adult is supposed to do. Do you want a sticker?

    But what happened as a result was a toothless committee putting out a report. That you agree with the report doesn’t change the fact that it can be ignored with impunity.

    1. SHG Post author

      On the one hand, you’re being disingenuous. On the other, you’re being myopic. Chris deserves the credit because he put his ass on the line to fight a battle no one else had the guts to wage. He didn’t ask for a sticker, but if he had gotten crushed for his efforts, would anyone cry for him? He did it. He took the risk when others wouldn’t. He gets the win.

      The Gideon War has been going on for more than 50 years, and this isn’t the end of the war. But if you lose the battles, then there is no hope of eventually winning the war. This was a huge win in a critical battle. It may “just” be a commission, but it’s the state’s commission, and the state’s commission report is huge. It may well be ignored, but it won’t cease to exist and provides the weapon needed for the next battle in the legislature and statehouse.

      Wars are waged battle by battle. This was a win, a huge win, and a win that happened because of Chris’ efforts. If your point is that the war has yet to be won, and that the next battle will be hard, likely harder, to win than this one, that’s true. But without this win, there would be no next battle. One battle at a time.

    2. CLS

      Scott, in this case, I think you need this win spelled out a little more clearly.

      From day one of my time as a Tennessee lawyer, people bitched and moaned about the fee caps and low rates of pay for court appointed counsel. The bitching and moaning accomplished nothing.

      The Tennessee Bar Association created a “study” for the legislature on indigent defense in an attempt to fix the problem. It accomplished nothing.

      When the legislature crafted the bill creating the Task Force, they did so under a belief the lawyers, judges, and academics on the panel would come back with “solutions” that didn’t require any extra funding. Instead, after I called bullshit and had every attorney, judge, and layperson breathing down their necks, they came back with proposals that will actually require more money.

      And yes, that day in Knoxville was a day of reckoning for Bill Koch where he lost sleep trying to flex his political capital and failed. It’s not every day one lawyer turns an entire room full of people against you and as you leave the local crime reporter shoves the letter you sent to said lawyer in your face, asking why the Task Force and the General Assembly care so little for the poor.

      Ignoring the Task Force’s recommendations does more than piss off the private bar. It means pissing off the state Supreme Court, influential academics, white-shoe law firm partners, judges, and the Governor’s private counsel. All who took their time and energy to create this report.

      I’m not asking for a sticker. I’m very well aware that what I did cost me business and pissed off some of the most powerful people in the state. Because I spoke up when no one else would, and I didn’t play nice, the Task Force had to do their job and will actually bring recommendations back that mean something.

      Ignoring those reports means in 2018 a shit ton of elected officials will be forced to repeatedly answer the question “Why do you hate poor people so much?”

      I spoke up. I put my ass on the line. We all win. Yes, it’s time to celebrate.

      1. SHG Post author

        Just remember, celebrate today, but tomorrow it’s back to work to win the next battle since the ultimate objective is to win the war.

  5. Patrick Maupin

    Pretty awesome, Chris.

    Ignore the haters. Enjoy your win and prepare for the next battle.

  6. David Meyer-Lindenberg

    Well done on getting the task force to make some decent recommendations, Chris. How do you plan to get the lege to act on this laundry list? As Koch warned you, for them to spend money on this would run contrary to their self-interest.

    1. CLS


      This is the first win in a long time, and now we’re in the long game.

      In April, when all recommendations are finally announced, eyes will be firmly on members of the legislature who vote on these recommendations. Yours truly will be making a list and checking it twice to see who votes yea or nay.

      Next year Tennessee’s General Assembly has several seats up for re-election. It’s going to be an interesting time for those who vote against the Task Force’s recommendations, getting asked at rallies, Q&As, and even at their offices prior to their campaigns why they hate poor people and the Constitution.

      The Governor’s race is going to be big in this too. Dwight Tarwater, counsel to Governor Haslam, “abstained” from the recommendations on raising court appointed attorney rates. That means anyone running with an (R) next to their name is going to have to come out in favor of these recommendations now, or face the same hurdle.

      And your favorite redneck will probably show up at a few of these events to ask some tough questions personally.

      1. SHG Post author

        Be nice to see some op-eds in local papers, and maybe even some liberal redneck comedians pushing buttons the way they do. Even a shiner or two (though I don’t really believe Rufus exists based on empirical liquid evidence).

      2. David Meyer-Lindenberg

        You’re gonna have to hustle, Chris. If the Bar could handle things on its own, indigent defense wouldn’t be in this predicament. You’ll need real people agitating on behalf of the list, writing letters, reading op-eds. And if you can get your hands on the Horn of Gondor, that wouldn’t hurt either.

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