Mimesis Law
22 November 2017

An Open Letter To The Tennessee Indigent Representation Task Force

Oct. 26, 2015 (Mimesis Law) — To Whom It May Concern:

It was with great amusement I read your press release on October 21 about the formation of an interdisciplinary task force in the Volunteer State to address the issue of indigent representation in Tennessee’s courts.  After all, there’s nothing like the feeling of continually trying to fix a broken system by implementing faulty policies that fly counter to Clarence Earl Gideon’s dream.

The task force will review the current indigent representation system, including indigency determinations, the delivery of services, and the administration of the indigent representation fund. Their charge is to guarantee that the system is addressing the needs of its recipients as well as benefiting the taxpayers of Tennessee.

Currently, the judicial system’s budget provides for an expenditure of approximately $19 million in criminal indigent representation, $12.5 million in child welfare and child support representation, and several more million for judicial hospitalizations, as well as experts and investigators who work on the criminal cases. That’s about $36 million each year.

That $36 million sounds like a princely sum indeed until you look at the budgets for sole counties and what they spend on matters like “public safety.” The 2014 budget in Knox County alone called for over $77 million in the name of “public safety,” and no one had a problem signing off on that.

Furthermore, the $36 million figure represents one of the worst pay scales for indigent representation in the nation. Tennessee attorneys who take on indigent defense cases work a pay rate of $40 per hour out of court and $50 per hour in court.  That’s a princely sum for the layperson, until one starts factoring in the caps laid out by Tennessee Supreme Court Rule 13.  When you can only make $750-$1000 on a case that can take over a year, it’s nearly impossible for attorneys to maintain an indigent defense case load and sustain a business, much less feed their families.

Speaking of caps, let’s discuss the “cap” put on hours spent defending indigent clients. Back in 2013, you rolled out a new proposal to “benefit the taxpayers of Tennessee” by limiting paid indigent defense work in the state to 2,000 hours total per year.  Your assurances that “very few of the thousands who take court appointed cases” would be affected wasn’t much of a panacea.  Neither was your helpful guide to the “average” amount of time each case took.

Here’s an uncomfortable truth for all of you on the “Task Force”: none of our clients are “average.”  Each is a human being with unique circumstances, a unique story, and needs that must be addressed before a court.  That’s why we take their cases in the first place.  The only thing you did in this “efficiency” move was reduce defendants to a number.

The entire system has been and will be about contracts and efficiency to you, though. That’s been clear long before your “Task Force” became a thing in our state.  It started in 2011, when you tried to put attorneys who took court appointed cases on a fixed fee per docket contract system.  Your contemptible “justice to the lowest bidder” approach earned our state national attention before you smartly decided to decline the measure.

Since the blessed Administrative Office of the Courts didn’t get its way the first time, you decided to announce the formation of a pilot program in Davidson County to test your contract system for child support contempt cases.  You liked saving money in Nashville so much the Supreme Court managed to order this fee system set for every juvenile court matter except delinquency cases.  When that caused a backlash, you were quick to note the new rule change merely “authorized” the contract system, it didn’t “require” you to actually enter into contracts with attorneys to handle all the work you could throw at them.

And you wonder why fewer and fewer experienced attorneys will take indigent clients.

This seems to matter to some of you; Chief Justice Sharon Lee was kind enough to admit paying court-appointed attorneys what they deserved was a Very Important Thing in your press release.

Chief Justice Sharon Lee said the task force is a necessary step in reviewing Tennessee’s current indigent representation system. She announced the creation of the task force to the Tennessee Judicial Conference Wednesday.

“We must not accept anything less than the most qualified representation in our courts, but we must also be sure that those receiving indigent representation qualify for those services and that the lawyers who perform the services are adequately compensated,” she said.

A wise enough statement from our State’s Chief Justice, and one that was immediately countered by the chair of the Task Force, William C. Koch, Jr.

“It’s imperative that Tennessee meet the constitutional obligation owed to all criminal defendants. But, there is also the necessity to do so in the most accountable, efficient, and effective manner possible,” said Koch. “I look forward to undertaking this important task.”

Running that statement through the Bullshit-to-Honesty translator produces the following: “We have to make sure we jump through all the hoops so people most at risk of being screwed by the justice system can’t play the “ineffective assistance of counsel” card, but we have to make sure we do it on the cheap.” Good going, Mr. Koch.

Looking through the composition of the task force doesn’t allow for much hope, either. Not a single person on your panel requires indigent defense representation to make ends meet.  Instead, you have two academics, four judges, two politicians, three people who are either agents of the government or work with the government, and two law partners.  None of these people have any skin in the game when it comes to fixing the problem of “access to justice” everyone seems so worried about in our state. Fortunately, as someone who’s worked these cases in the past, I’ll be more than happy to give you some suggestions to “fix” the matter so you can truly provide effective representation to indigent defendants.

  • First, raise the rates of pay so we can afford to take these cases.
  • Second, remove the hour and maximum pay caps on these matters so we can make taking indigent cases sustainable portions of our practices.
  • Finally, get rid of the contract system that “authorizes,” but does not “require,” the AOC to enter into a scheme of justice to the lowest bidder.

That’s all it takes to accomplish indigent defense reform in this state.  Three actions you can suggest right now, and the Administrative Office of the Courts can enter immediately on your suggestion.  There’s no need for a “task force,” a “blue ribbon panel,” or even a “study” of the issues.  Just taking those three steps will bring back lawyers to the defense bar in droves and dramatically improve the quality of representation for court appointed cases in Tennessee.

Since you’re so focused on “efficiency” and the bottom line to the Indigent Defense Fund, I doubt any of these suggestions will ever materialize as public policy.  Still, I thought I’d help.

Hugs and Kisses,

Chris

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