Pleading the Sixth: Recognizing that the State of Tennessee needs a better way of providing right to counsel services, in September 2015 former Chief Justice Sharon Lee created an Indigent Representation Task Force and challenged them to “build a better mousetrap.” After 18 months of study and public hearings, the Task Force did just that. Today, it released a comprehensive report calling for a single statewide commission to administer all indigent legal services, bringing together the oversight of what is now three separate systems for the provision of counsel. In a companion piece, the 6AC explains why the Task Force recommendations diverge from the recommendations the US Department of Justice is pursuing in Shelby County (Memphis).
On April 10, 2017, the Tennessee Supreme Court Indigent Representation Task Force released a new report, Liberty & Justice For All: Providing Right to Counsel Services in Tennessee, detailing a plan to revamp public counsel services. Observing that Tennessee “can’t keep doing the same thing and hoping for a different result,” former Chief Justice Sharon Lee appointed the Task Force – 13 members including legislators, judges, the Governor’s counsel, and others – in September 2015 and challenged them to “build a better mousetrap” in determining “how the state can deliver the right to counsel in a more efficient manner.”
The Task Force report does just that. Recognizing that Tennessee has seen a “dramatic increase in the ratio of cases to the justice system’s capacity during the past twenty years,” the Task Force concludes that the current system for providing lawyers to the poor “is not sustainable without additional resources.” As noted in the Court’s press release, the Task Force recommends that “Tennessee (1) promote statewide uniformity in the programs providing legal assistance, (2) improve the quality of legal assistance being provided and (3) enhance the management and oversight of these programs,” by, among other actions:
- passing legislation to create a single statewide commission with authority to promulgate and enforce uniform standards over all indigent criminal, delinquency, and civil cases;
- creating a statewide appellate defender office;
- requiring the district defender system to provide primary representation in delinquency cases;
- increasing the numbers and types of support staff in the district defender offices; and,
- significantly raising the compensation rates paid to private attorneys to handle indigent cases and setting expert compensation at market rates.
The report is the culmination of 18 months’ work of research, public hearings, and debate that took the Task Force all across the state.
“Doing the same thing and hoping for a different result”
The Task Force report finds:
(1) that the lack of uniform policies and the uniform administration of these policies has impaired and continues to impair Tennessee’s ability to provide appropriate representation services in an efficient, cost-effective, and accountable way; (2) that the lack of a uniform voice regarding the needs of the entire system has left the various stakeholders with no option other than to compete with each other for available resources; and (3) the often-times competing funding requests have undermined efforts to obtain needed funding and resources.
To understand why the Task Force recommendations would indeed be a more efficient and effective means of providing right to counsel services, we begin by looking at the Task Force’s description of what exists today in Tennessee.
In Tennessee, an indigent person is entitled to public counsel, in accord with Sixth Amendment case law, at trial and appeal in any criminal or juvenile delinquency proceeding that carries incarceration as a possible sentence. Tennessee law additionally provides for appointing counsel to represent indigent people in a significant number of other types of cases and stages of them. There are three different systems within Tennessee to provide all of this representation: a capital post-conviction office; the district defender office system; and the private attorney appointment system.
No matter which of the three systems is providing representation, the state of Tennessee provides nearly all of the existing but insufficient funding for that representation. (Only Davidson, Hamilton, Knox, and Shelby counties contribute significantly to the costs of their district defender offices, and counties do not bear any of the cost of private attorneys or for the capital post-conviction office). But the three systems – the district defender offices, the private attorney appointments, and the capital post-conviction office – are entirely separate from each other, with differing oversight, monetary management, and degrees of efficiency that the Task Force seeks to improve.
1. The capital post-conviction office
Tennessee has only one statewide office relating to the provision of the right to counsel, and its role is very limited. The Office of the Post-Conviction Defender is a state agency in the judicial branch that represents all indigent death row defendants in their state collateral proceedings. A nine-member commission oversees the office, and the appointing authorities for the members of that commission represent all three branches of government: two by the governor; two by the lieutenant governor; two by the speaker of the house; and three by the supreme court. All funding comes from the state, through an annual general appropriation line-item solely for the office’s operations under the auspices of its commission.
All other representation of indigent people in Tennessee is provided by either the district defender office system or the private attorney appointment system.
2. The district defender office system
Tennessee has 95 counties that are divided into 31 judicial districts. Each of the 31 judicial districts has a defender office. The heads of the district defender offices in thirty of the thirty-one districts are popularly elected. These thirty chief defenders are all elected for eight-year terms, except the chief public defender in Davidson County (Nashville) who is elected every four years. The only chief defender who is not elected is in Shelby County (Memphis) – this chief is appointed by the county mayor.
Each district defender office is responsible, in the first instance, for providing all right to counsel services within its district (except for capital post-conviction representation). Specifically, the Tennessee Supreme Court rules require every judge to appoint the district public defender’s office to represent an indigent person unless the office has a conflict of interest or the district defender “makes a clear and convincing showing that adding the appointment to counsel’s current workload would prevent counsel from rendering effective representation in accordance with constitutional and professional standards.” Over the years, as the number of indigent people requiring representation has increased and the funding for the district defender offices has remained flat, the district defender offices have been appointed in an ever-decreasing percentage of cases.
In 1989, at the same time that the legislature created the district defender office system, it also created the Tennessee District Public Defender Conference. The purpose of the Conference is to provide a place for the thirty-one district chiefs to meet and coordinate their efforts. It is intended to serve as the collective voice of all the district chiefs at the state level. Each district chief has one vote, and decisions are made by a simple majority of the thirty-one votes.
Primarily though, the Conference argues to the legislature for the amount of, and then manages the distribution of, the state’s funding to the district offices. The state makes a general appropriation each year for the collective operations of all of the district public defender offices, except the appropriations for Davidson County (Nashville) and Shelby County (Memphis) are separate as a result of historical quirks. Importantly, the amount of money that the state appropriates to the thirty-one districts does not correspond to the total funding needed. Worse yet, what funding the state does provide is not distributed to the individual districts according to where it is most needed or how it should most efficiently be used.
Shelby and Davidson counties both had public defender offices before the state created the district defender system in 1989. Those county public defender offices were allowed to continue under the current system, and the state appropriates some funds to their operation, though both of the counties contribute a significant amount. The precise amount that the state provides to each of these counties is based on what the state first provided back in 1992, and then adjusted annually based solely on the average annual change in the consumer price index. The consumer price index has, if anything, an inverse correlation to a county’s indigent representation needs; that is, the number and severity of the cases requiring a public defender often increase in bad economic times when the consumer price index decreases. The state, therefore, gives these counties less money at the very time that they need more. (The companion article takes a detailed look at Shelby County and the difficulties it faces in meeting the demands of the U.S. Department of Justice, in part as a result of this funding inequity.)
For all of the other twenty-nine districts ( other than Davidson and Shelby counties), the amount of state funding they instruct the Conference to request from the legislature is based on the simple majority vote of all the district chiefs. Then whatever funding the state appropriates is distributed to the individual twenty-nine districts based on a formula voted on by those district chiefs.
Here is how this plays out. Tennessee’s ten most populous judicial districts cover 55.56% of the state’s total population, but together those ten votes are less than 1/3 of the total votes at the Conference. Meanwhile, the chief defenders from the twenty-one least populated districts (cumulatively representing only 34.43% of the state’s total population) together form a more than 2/3 majority voting bloc, in effect giving them veto-proof power over the funding of the entire district public defender system. This means the collective state funding for twenty-nine of the thirty-one districts is distributed, not according to where it is most needed or how it should most efficiently be distributed, but rather according to the wishes of the majority of the district chiefs. The Task Force found a wide range in the amount of funding each district receives on a per capita basis, from a high of $24.93 to a low of $7.89.
This complicated situation is all explained in a short 6AC video:
Finally, although by Supreme Court rule the district defender offices are supposed to be appointed first in every case of representation for an indigent person unless they have a conflict or too many cases, many district defender offices simply do not handle certain types of right to counsel cases at all. For example, Davidson County (Nashville) is the only district defender office known to provide representation in abuse, neglect, parental rights, and custody cases. As the Task Force notes, there is some ambiguity in Tennessee law about whether the district defender offices are ever intended to represent juveniles in delinquency proceedings, and few of them do so today, with only 17.22% of juvenile delinquency cases statewide being handled by the district defender offices. (Representation of children in juvenile delinquency proceedings is the focus of the DOJ’s ongoing oversight in Shelby County. The companion article explains how existing Tennessee law prevents Shelby County from complying with the DOJ’s remaining demands.)
In short, the district defender office system is primarily state-funded. But each of the thirty-one districts is independent of the others and is separately managed by its chief defender. The legislature determines how many assistant public defenders and investigators each district office can have and sets their salaries. Within those parameters, each chief defender is responsible for hiring, firing, and managing the employees of the office, and for setting and implementing the policies and procedures of the district defender office. In other words, the policies and procedures of the district defender offices can and do vary from one district to the next in Tennessee.
3. The private attorney appointment system
No matter the reason, a private attorney is appointed to handle any indigent case of any type that is not handled by the capital post-conviction office or a district defender office, and that private attorney is chosen and appointed directly by a judge and paid an hourly rate for his services. The number of cases requiring appointment of a private attorney has steadily increased. Today, private attorneys are appointed to provide representation in all criminal conflict cases, and in many areas of the state they provide the bulk of the representation in all delinquency and other types of cases.
The state provides 100% of the funding for the private attorney appointment system. The legislature makes a general appropriation each year for the total funding available to pay individual private attorneys for their work in indigent cases and to reimburse necessary out-of-pocket expenses. There are actually three different line items that together make up the total: one for Guardian Ad Litem; one for Indigent Defendants’ Counsel; and one for Civil Legal Representation Fund.
The Tennessee Supreme Court Rules set the amount each private attorney is paid in each case. For all except capital cases, attorneys cannot be paid more than $40 per hour for case preparation outside of court and $50 per hour for their time in court. Notably, Tennessee law says appointed attorneys are “entitled to reasonable compensation for their services,” but as the Task Force observes, these rates have not changed since 1997 and are not even sufficient to cover an attorney’s overhead today, much less to provide any compensation. Further, no matter how many hours a case actually requires of an attorney, the rules establish a maximum amount the attorney can be paid based on the type of case. For example, the maximum an attorney can be paid is $1,000 for any misdemeanor and for any juvenile in a non-capital felony, and $1,500 for any adult charged with a felony below a Class B. According to the Task Force, the combined impact of low compensation rates and per-case payment caps “has negatively impacted the number of experienced lawyers willing to accept appointments to represent eligible adults and children and has also affected the quality of the legal representation being provided.” (For a thorough discussion of state indigent defense compensation rates, see the National Association of Criminal Defense Lawyers’ report Rationing Justice).
Each individual local judge solely selects and oversees the private attorneys who are appointed to represent indigent people in their courts and approves (or disapproves) the attorneys’ vouchers requesting payment for their services. The Task Force found that local judges have nearly unfettered discretion in choosing the private attorneys to whom they appoint cases in their courtrooms. Though the Supreme Court Rules direct each judge to maintain a list of attorneys to be appointed, the rule “also gives courts broad discretion to bypass the roster,” and Tennessee law does not establish any qualifications, experience, or training necessary for private attorneys appointed to represent indigent people. Moreover, the Task Force learned it is not uncommon for judges to by-pass the district defender system entirely and appoint a private attorney even when the district defender is available, for reasons such as “a public defender was not physically present at the time, concern that the public defenders were overworked, or a preference for private counsel.”
The Task Force recommendations
The Supreme Court Task Force wants to replace the flawed and uncoordinated three systems with a single independent statewide commission to oversee all aspects of representation, including:
- bringing all existing systems for the provision of counsel – the office of the post-conviction defender, the district defender office system and its Conference, and the private attorney appointment system – under the single umbrella of the commission;
- preparing and managing a single annual budget for all activities related to the provision of legal representation to eligible adults and children;
- developing and administering uniform training and performance standards for all attorneys providing public representation;
- providing or arranging for the provision of continuing legal education programs and other training to maintain and improve the quality of services being provided;
- creating and administering a uniform certification program for lawyers desiring to be appointed to represent eligible adults and juveniles; and
- transferring the existing resources and responsibilities from the Administrative Office of Courts to the commission to oversee the payment and supervision of appointed private attorneys.
The Task Force also recommends:
- expanding the duties of the one statewide office, the Office of the Post-Conviction Defender, to handle all direct appeals statewide, relieving the district defender offices of this responsibility and creating greater efficiency in the handling of appeals;
- increasing the funding to the district defender offices so that they can handle all trial-level cases other than those in which they have a conflict, including all criminal and juvenile delinquency cases, thereby greatly reducing the number of cases that go to the more expensive private attorney appointment system;
- creating conflict defender offices in the (mostly urban) areas of the state where the number of conflict cases is so high as to justify having a full-time office to handle them, again greatly reducing the number of cases that must go to the more expensive private attorney appointment system; and
- raising the hourly rate paid to private attorneys in appointed cases to between $75 and $125 per hour, with no distinction for in-court and out-of-court work and with no cap on maximum compensation, to ensure that an adequate number of lawyers who are capable of providing effective representation are willing to accept appointments in the conflict cases that cannot be handled by the district defender offices.
Out of respect for the separation of powers, the Task Force decided it was prudent to leave many of the details of this recommended system to the deliberative legislative process. The Task Force recommends that the legislature convene a multi-branch committee as soon as possible to address the details of the proposed commission, specifically: (a) the composition of the commission and the selection of its members; (b) the scope of its duties; and (c) the process for transferring existing resources and personnel to the commission.
The 6AC will keep you posted as the process enters the legislative arena!
 Tenn. Code Ann. § 8-14-110 (2016).
 As of the 2010 U.S. Census, Tennessee had a total population of 6,346,105. The ten most populous judicial districts had a combined population of 3,526,063. Those districts are, in order by population:
Davidson County (Nashville)
Knox County (Knoxville)
Hamilton County (Chattanooga)
Rutherford (Murfreesboro) & Cannon counties
Williamson (Franklin), Hickman, Lewis, & Perry counties
Montgomery (Clarksville) & Robertson counties
Sumner County (Gallatin)
Sullivan County (Blountville)
Blount County (Maryville)