Even a blind squirrel finds a nut on occasion, and sometimes people are wrong. I am willing to admit my prior criticisms of the General Assembly, backed by the words of no less a luminary than Task Force Chairman William Koch, were somewhat unfounded. The Tennessee General Assembly decided this month if they dangled a little extra money in front of the trench lawyers, all of their problems would go away.

[Tennessee’s] FY 2018/19 state budget includes an additional $9.7 million in recurring funding for indigent representation reform. On April 19, 2018, the Tennessee Senate and House of Representatives approved the budget. On May 21, 2018, Gov. Haslam signed the appropriations bill. The funding becomes available July 1, 2018.

What this $9.7 million reoccurring appropriation does is raise the rates of compensation for court-appointed attorneys to a flat $50 per hour. It also increases the caps on the amount of money attorneys can get in given cases.

What the appropriation doesn’t do is address a number of the proposals the Task Force recommended that would really make Tennessee a state honoring the mandate of Gideon v. Wainwright. There’s no mention of an appellate public defender system or certification process for new attorneys seeking to take indigent defense cases.

And absent from the discussion is the recommended overhaul of the state’s bail bonding system. That recommendation has been dead in the water since the Indigent Representation Task Force released their report, and it’s one that could have serious impact on the entire indigent defense system. When a defendant’s family struggles to raise an absurd sum springing their loved one from the slammer, it’s no wonder the answer to the loaded question, “Do you want a court appointed attorney or are you going to try and hire one?”* is “I’ll take the court appointed lawyer, Your Honor.”

This is a crumb dangled to the green, hungry lawyers tired of designating their work for $45 per hour out of court and $50 in court. The General Assembly hopes that by throwing five extra dollars an hour at the problem all the lawyers will finally say, “Okay, at least that’s something” and never cry foul again.

One glaring problem exists though. The money’s not coming anytime soon.** Tennessee’s new fiscal year starts July 1. On May 25 the State Supreme Court issued an Order requesting public comment on this new appropriation of funds and how it should be applied to Rule 13, the Rule regarding payment of court-appointed attorneys.

Let that sink in for a moment. The General Assembly offers up $9.7 million for indigent defense, and the State Supremes want “public comment” on the new appropriation. What good does a public comment period do besides appease administrators? After years of lawyers across the state yelling “raise the rates” and no accomplishments, just what comments does the State High Court think it’s going to get now?

This “public comment” period reeks of the Administrative Office of the Courts, the bureaucratic arm of the Tennessee Supreme Court. It’s an administrative body that thinks so little of indigent defense that it reduced defendants to numbers of hours instead of actually treating them as people. It’s staffed by individuals who proudly stood in front of a group of private lawyers*** on the fiftieth anniversary of Gideon and said “If [we] had our way you’d all be making $25 per hour on each case and you’d like it.”

If the Tennessee Supreme Court is truly concerned about overhauling indigent defense in the Volunteer State, and the extra pittance dangling in front of trench lawyers won’t actually be released until a public comment period ends. Then maybe a big step would be an overhaul of the Administrative Office of the Courts.

Here’s a great first step. Tell every single AOC employee they’re going to re-interview for their jobs. The first question asked on the interview should be “Have you read Gideon v. Wainwright, and do you understand how important it is in the legal system?” If the answer to these questions is at any point “no,” show them the door.

Five dollars and public comments aren’t enough. It’s time to start the heavy lifting required for truly reforming indigent defense in Tennessee.

*A practicing jurist with whom I’m familiar asks defendants in court the question this way. It’s his good faith way of trying to get young lawyers in his court more work, but asking the question in this fashion predisposes defendants to automatically try and declare indigency.

**Yes, the Court anticipates formally changing Rule 13 shortly after the public comment period ends on June 25. If you think the money’s still going to be there after July 1, then you don’t understand bureaucracies.

***I was present for this meeting, where the hourly caps were announced and “guidelines” issued on how many hours a case should take. It did not go well.