Tennessee has an indigent representation problem. No less an authority than Justice Sharon Lee knows this. That’s why untold sums of taxpayer dollars were thrown at an “Indigent Representation Task Force,” which rambled across the state listening to aggrieved attorneys and citizens.
That task force, after nearly two years’ work, issued a series of recommendations on how to fix the indigent representation problem. When the recommendations were formally announced, attorneys across the state rejoiced. They were solid, responsible reforms to the current system that would fulfill the mandate of Gideon v. Wainwright. The justice system wouldn’t be a drawn out Tennessee Waltz, it would actually resemble justice.
The task force confirmed what many of us already suspected: The system needs major [reforms.]
That press release announced the Tennessee Supreme Court’s decision to back certain aspects of the Task Force’s recommendations. Not all of them, but some. Here’s a brief list of what the Tennessee Supreme Court is interested in pushing for reform:
- Increasing the rate of attorney compensation to $65 per hour.
- Raising the fee caps on cases by $500 for felonies and $250 for juvenile matters.
- Establishing an appellate division of the Public Defender’s office to handle appeals.
- Periodic billing for cases that tend to take longer than most, like Dependency and Neglect cases.
- Modifications to the state’s Affidavit of Indigency so judges are required to “explain and certify the existence of a conflict” before appointing private counsel.
Such reforms sound nice, if you’ve got the attention span of a gnat and don’t care much for those charged with a crime who cannot pay reasonable attorney fees. Here’s a few things the Tennessee Supreme Court neglected to back in their press release:
- Establishing a certification process to make sure attorneys seeking court appointments would be qualified based on their training and expertise.
- Treating driving on a revoked license and failing to pay court fines and fees as civil matters instead of criminal.
- Overhauling the bail bonding system, including re-evaluating circumstances when defendants should be released on their own recognizance.
- Creating a “release valve” for attorneys reaching the state mandated 2,000 hour per year mark for indigent representation so defendants wouldn’t be worried about attorneys “giving up” on their case.
Forget the fact the Task Force recommended a raise in compensation rates for private counsel to “no less than $75 per hour, but no more than $125 per hour.” The Task Force recommended fundamental reforms to indigent representation that would cut down time for defendants in court, make sure defendants had competent representation and could rely on their attorney to provide zealous advocacy regardless of the state’s “one size fits all” approach to cases.
No, the Tennessee Supreme Court chose to look the other way when it came to which recommendations it wanted to back. Compensation rates were a non-issue. If the Task Force recommended “no less than $75” per hour, then $65 would be just fine in their eyes. The bail bonding system, which the task force called a “dirty secret” in their report, is a non-issue. And if a cop stops you and finds out you’ve yet to pay your court fines and fees, you’re still going to jail with the Tennessee Supreme Court’s blessing.
The first response to the Tennessee Supremes’ press release came from Lucian Pera, the head of the Tennessee Bar Association. It’s sad to admit the response was completely predictable.
The TBA applauds the Supreme Court’s strong leadership on indigent representation reform. We look forward to partnering with the Court and others interested in making real improvement on the status quo.
In response to Pera’s remarks, a lawyer on a TBA listerv had the following to say: “We’re applauding? This TBA member isn’t applauding.”
Those words are telling. While Pera might be applauding, those of us in the trenches without a cushy job in Nashville aren’t. We see the Tennessee Supreme Court’s “backing” for what it is: nothing more than a mealy-mouthed attempt to spoon feed Tennessee’s legislature towards a modicum of reform. Not the reform the system needs, but the reform the Tennessee Supremes think will best suit the tastes of the General Assembly.
When the Listening Tour came to Knoxville, I came prepared with a statement the Task Force eventually understood. Sadly, the Tennessee Supremes did not heed my warning.
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.
The curtain has been lifted. That show has been exposed for the fraud it was. And sadly, five Justices who should know the law, who should take a keen interest in adhering to the Constitution, failed the Volunteer State.