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.