Mimesis Law
21 November 2017

Tennessee Task Force On Lying To The Poor

May 23, 2016 (Mimesis Law) — I’ve been a strong critic of the Tennessee Indigent Representation Task Force since its inception last year.  The initial press release suggested that the Task Force’s chief accomplishment would be adding a new line to each member’s resume.  I was rude enough to say so.

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.

My criticisms, backed with five years of history and documents, hurt Chairman William Koch’s feelings so much that he wrote me a letter and offered a chance to speak at one of their “listening tour” stops.  My attendance on May 20th in Knoxville proved my skepticism correct.  The Task Force’s sole concern is smoothing the ruffled feathers of angry indigent defense counsel. The only “suggestions” they will bring the state legislature involve getting more blood from the same rocks.

I took up Chairman Koch’s offer to speak at the Knoxville stop.  Surprisingly, I learned via an email from a local bar association that this required booking time on the Task Force’s website. I was given a full ten minutes. Being no stranger to time limits, I prepared a written statement and distributed it that Friday.

The meeting started at eleven, with half the Task Force attending. Presumably, the rest had something more important to do.  Those present to hear the “record setting crowd’s” concerns included Tennessee Supreme Court Chief Justice Sharon Lee, Chairman William Koch, Dwight Tarwater (Counsel to Governor Haslam), David Byrne from the Administrative Office of the Courts, and 11th Judicial District Judge Barry Steelman.  After his opening remarks, Chairman Koch looked me dead in the eyes and said:

I know some people here are skeptical of “Task Forces,” thinking they’re all talk and no show, but I think we’ve got the potential here to do some really good things for the State of Tennessee…Of course, we don’t know what the legislature will do, but we can take them back some good ideas.  

It was as if Koch knew I’d call him out the moment I took the floor.  After all, prior to the “Listening Tour’s” Knoxville stop, I had done an hour on the radio and sent my statement to every media contact I had.

What this Task Force is about is ascertaining how little you can spend while appearing to fulfill that mandate.  The key word is “appearance.”  Not fulfill the command of Gideon v. Wainwright, but doing just enough to make it seem as if you are.  Everything the State of Tennessee has done since 2011 is based on this premise, spend the least amount possible to create plausible deniability, to pretend to fulfill the duty without spending a dime more than necessary.

The first of the ten speakers reserving time was Mark Stephens, Chief Public Defender for Knoxville, who compared the caseloads of his office’s members with standards set by the National Advisory Commission on Criminal Justice Standards and Goals (NAC). which recommends the following caseload as the maximum permissible while still providing “competent legal representation.”

150 felonies per attorney per year;
400 misdemeanors per attorney per year;

This means a lawyer handling felony cases should handle no more than 150 felonies in a given year, assuming the lawyer has no additional duties.

Stephens would contrast this with Tennessee’s “permissible” workload:

233 felonies per attorney per year;
500 misdemeanors per attorney per year.

That’s 83 more felonies and 100 more misdemeanors than the nationally recommended maximum caseload, placing Tennessee’s “permissible” standards as arguably the highest workload in the nation.  Knox County’s Public Defender’s office is ill-equipped to handle such a workload, as they are under-staffed by ten attorneys this year.  Despite this, Stephens’ office handles cases with an embarrassingly low “efficiency,” which no doubt the State loves.  Each case his office worked cost the people of Tennessee $313.  “No one could hire an effective lawyer for less than $500, or get an effective defense,” Stephens said.

The morning continued with public defenders repeatedly lamenting disparity in funding, cries for more staffing, and discussions on how repeated arrests over minor offenses increased their workload.  Ed Miller, Public Defender for the Fourth Judicial District, remarked his one office covering four counties, each with a separate district attorney’s office. He told the Task Force that bringing a case to trial was “the equivalent of bringing a plastic fork to a gun fight.”

Blount County’s Public Defender lamented the amount of time and resources his office spent defending contempt of court cases for failure to pay fines, court costs, or legal fees.  “We are trying to keep poor people out of jail for being poor,” he stated.  “What this legislature and I’m sure many want to see is more of an organizational than a financial fix.”  Though the “organizational” approach has proven not to work, it’s the approach Tennessee seeks, as it comes at no additional cost.

This approach has sacrificed the constitutional rights of the poor on the altar of the state budget.  And has made Tennessee a national joke, where justice is sold to the lowest bidder. 

Bill Koch’s response indicated a shocking tone deafness.

Maybe it’s time we revisited the sentencing guidelines.  I don’t think we’ve done that in forty years. In fact, I think it was the last time we raised rates of pay.

Another suggestion was digitizing court records to minimize the time public defenders spent reviewing case files, apparently under the widely held view that one can more swiftly read the same information off a screen than paper.

It’s good enough for Tennessee if it looks close enough to make it appear sufficient, even though we all know, you, me, and those human beings whose rights are being sold out, that it’s a sham.

After a break, the private bar aired their grievances. The first attorney detailed the ridiculous time frames it took to get paid for court appointed work. Juvenile cases were usually paid within 160 days from the date of billing. Criminal cases were paid in about forty days. The continual failure to timely pay meant the State currently owes him $164,996. If the State paid what they owed six months ago that amount would have been thirty thousand dollars less. In the meantime, his expenses continue to come due, as his employees’ children like to eat with some regularity.

Then came my presentation. I called the Task Force what it was, “a show for public consumption.” I read a quote from Bill Koch’s letter admitting Tennessee’s legislature would never increase funding.  Chief Justice Lee appeared shocked when I discussed the AOC’s helpful “one size fits all” guide reducing cases and people to hours.*

My concluding statement to the Task Force brought the room to absolute silence.

If there is no political will to fulfill the constitutional mandate to the poor defendants of Tennessee by providing them competent representation, then let it be clear that this State cares more about money than the Constitution  But that it seeks to put on a traveling show to create the appearance of caring, when it has no intention to put up the money needed to fix this disaster, is an insult to the judges, the lawyers and the indigent citizens of Tennessee…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.

At the end of my remarks, Dwight Tarwater asked if I had any helpful suggestions. I had none. There was no “workaround” the refusal to adequately fund indigent defense.  My remarks about their sham appearance of caring forced Chairman Koch and Chief Justice Lee to admit the Task Force was truly about circumventing the need for adequate funding.

“The Legislature is not going to pay money for the same old thing,” Koch said. “We haven’t, in the last 30 years, looked at (the process of providing legal services for the poor) holistically.” (Emphasis added.)

Holistically? That’s a pretty spectacular word that evokes a sense of well-being, and means essentially nothing.

Tennessee Supreme Court Chief Justice Sharon Lee agreed.

“I think we are looking at the overall system,” Lee said. “I personally think the rates should be increased but … that’s a Band-Aid. We need to look at the overall system. How can we more efficiently and effectively provide this service?” (Emphasis added.)

How can change in a grossly understaffed, underfunded system be achieved without spending money? That the question the Task Force sought to answer. I can help them with that. It can’t.

Keep an eye on Tennessee as the Task Force reports to the legislature.  There will likely be a few suggested “tweaks” in the system giving public defenders a nice tummy rub and signaling the private bar that this legal medicine show cares deeply about them. But this focus on “effective” and “efficiency,” in lieu of adequate funding, means there will be no change.

There is only one solution to absurdly inadequate funding, and that’s adequate funding. That is the one thing the Task Force predetermined they would never recommend. Its mandate is to find a way, any way, to pacify the bar, create the appearance of constitutional adequacy and not cost the state another dime. This refusal, the turn of a bind eye to indigent defense, means Tennessee’s already one step closer to a statewide version of the crisis in Orleans Parish, Louisiana. It’s time to bring the curtain down on this traveling show.

* Earlier posts on the Task Force provide background press releases and letters demonstrating its real motivations.

7 Comments on this post.

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  • The Tennessee Waltz Around Gideon | Simple Justice
    23 May 2016 at 8:58 am - Reply

    […] Chris Seaton at Fault Lines gave them an answer: You can’t, and you’re a sham. […]

  • Ahcuah
    23 May 2016 at 9:24 pm - Reply

    Since this violates the constitutional rights of each of the indigent defendants, does each one have some recourse after being convicted? Habeas? Or is it that in a habeas hearing the judge decides that the constitutional violation did not change the outcome? (Though, how could a judge reasonably know that if the public defender could not do the sort of investigation a full-paying defendant could afford?)

  • Robert Beckman
    24 May 2016 at 6:16 pm - Reply

    There is an easy way to reduce the defenders caseload, without spending a single penny more. Prosecute fewer crimes.

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