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.
—My statement to the Tennessee Indigent Defense Task Force on May 20, 2016.
If you ask just about any current member of the General Assembly, they will tell you that the annual appropriation to fund indigent defense representation programs is among the least popular appropriation they make every year. In fact, many legislators lean toward cutting this appropriation…I mention this only to help you understand that there is 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…to represent indigent criminal defendants is and will continue to be dead on arrival.
—Task Force Chairman William Koch, Letter, February 10, 2016. (Emphasis mine)
Tennessee continues its waltz around indigent defense funding with more ham-fisted “recommendations” that do nothing to solve a key problem. Lawyers with experience are turning from indigent representation in droves, and no “recommendations” from the Volunteer State’s Supremes can fix that.
The latest illusion crafted by Tennessee’s Supreme Court is an increase in compensation for private attorneys handling indigent defense cases to $65 an hour and raising the felony cap to $1,500. It’s no surprise public defenders, those with little to gain under current proposals, are calling bullshit.
Last week, the state’s high court weighed in with a release supporting the task force’s work and resulting report. The court said it would change its own rules to boost hourly pay for private lawyers handling court-appointed cases to $65 and raise the maximum total pay per felony criminal case to $1,500. But the court has no power to fund that increase and must instead look to state legislators and Gov. Bill Haslam.
[Knox County Public Defender Mark] Stephens noted that even if those increases are funded, a lawyer would only be paid for 23 hours of work on a felony case no matter how serious the allegation or complicated the defense work.
“You’re saying any lawyer can handle a felony in 23 hours,” he said. “You’re incentivizing lawyers to do less.”
Stephens isn’t wrong in his assertion. When any attorney is guaranteed pay for only twenty-three hours of work on a felony case, it is incentivizing them to do less. Lawyers are charged to zealously advocate for their client’s best interests, but they have to eat and pay bills too. Working for less than a full day to finish a felony with payment means more attorneys will be inclined to cut corners and move to the next case.
It’s also worth noting that every new recommendation carries no more weight than “Tennessee’s Supreme Court said so.” Almost three years have elapsed since the High Court acknowledged a problem with Tennessee’s indigent defense system and no meaningful changes have actually occurred.
That lack of change is reflected in the quote from Chairman Koch’s letter to me in February, 2016. Its words, which he would later regret, ring with a somber truth. The problem isn’t the good intentions and tummy rubs of the Task Force or the Supreme Court. It’s the folks in the General Assembly who want to keep their jobs by appearing “tough on crime.”
So the dance begins again, with different recommendations from the last tune and no actual incentive to the General Assembly to honor the new empty promises. Can Tennessee finally wake up and realize the lauded Indigent Defense Task Force was a sham?
As long as the Task Force keeps up with its press releases, and the state Supreme Court nods their head in approval, most Tennesseans will remain satisfied with the work their taxpayer dollars fund. Unless you’ve been through the system and faced the massive resources of the State that compel you to give up and plead guilty, there’s no reason for you to care.
Meanwhile, the Task Force members get to pat themselves on the back for all the hard work they did listening to complaints of underfunded public defenders and uncompensated members of the private bar. Each new press release with more recommendations and praise from the current Justices on the state Supreme Court gives more credence to their aura of respectability, the illusion that they have any teeth to enact meaningful reform.
When those recommendations reach the General Assembly, the state legislators collectively stick fingers in their ears and go “NA NA NA I CAN’T HEAR YOU.” It’s the easier route, allowing them to appease constituents by allowing Sunday wine sales and criminalizing talking on cellphones in school zones.
There was never a desire to actually fix indigent defense in Tennessee. Doing so in an effective way requires spending money. The Legislature knew that back in 2015 when they paid people with no skin in the game to address the State’s indigent defense problems. They know it today, because three years’ worth of study, listening and recommendations produced no change whatsoever.
Enough with the recommendations. It’s time for apologies. The Task Force and the state Supreme Court need a new tour. An apology tour, where they admit to the public what they really wanted was a way to make it look like they cared without actually spending real money. Where they apologize to every Tennessean whose tax dollars they squandered to hear public defenders lament taking cases to trial. Admitting it was the equivalent of “bringing a plastic fork to a gun fight.”
The Task Force and the General Assembly failed the people of Tennessee by throwing money at a problem with a mandate to make sure no extra funds were allocated for indigent defense. Enough with the recommendations. It’s time for “we’re sorry.”