Pleading the Sixth: For nearly five years, the U.S. Department of Justice has been trying to improve the representation of children in delinquency proceedings in Shelby County (Memphis), Tennessee. As the DOJ seeks to put more indigent defense funding responsibilities on Shelby County, the plan is running counter to funding changes recommended by the Supreme Court Indigent Representation Task Force. The companion piece to this article explains in full Tennessee’s existing three separate systems for providing the right to counsel and how the Task Force recommendations would consolidate them into a single far-more efficient system.
Since December 2012, the juvenile court in Shelby County (Memphis), Tennessee has been operating under a supervision agreement with the Civil Rights Division of the United States Department of Justice. Under the terms of that agreement, the county and its juvenile court are required to implement a large number of reforms to the juvenile court system to correct long-standing “fail[ures] to ensure due process for all children appearing for delinquency proceedings.” (Read the details about the report and the agreement.)
The county and the local court have successfully fixed many of the problems identified in the DOJ’s original report, such as poor conditions in facilities where children are detained, disproportionately high numbers of minority children in the system, and an excessive number of children being transferred to adult court. Indeed, the DOJ monitors have found compliance with nearly all of the agreed-upon remedies. But there remains one major issue where the due process monitor finds compliance still lacking; that is, the manner in which children are provided with the constitutionally required right to effective representation by counsel. Specifically, Shelby County is required to ensure that the lawyers who represent children in the juvenile delinquency court are independent and free of undue judicial and political interference.
The failure to fix this problem is not due to a lack of desire on the part of Shelby County or its juvenile court. To the contrary, they have explored and continue to consider every possible proposed solution. Unfortunately, the only possibilities either require the intervention of the state (in ways recommended statewide by the Supreme Court Task Force) or that the county significantly increase its funding of public counsel in the juvenile court (the recommendation of the DOJ). Here’s why.
Juvenile delinquency representation in Shelby County
Under Tennessee laws, there are only two ways that representation is provided to children in juvenile delinquency proceedings. Either a district defender office represents the child or the local court appoints a private attorney. (In the companion piece, the 6AC explains in detail Tennessee’s existing three separate systems for providing representation to indigent people.)
Shelby County (Memphis) is one of 31 judicial districts in Tennessee. By state law since 1989, it and the other 30 districts are all required to have a district defender office. Shelby County had a public defender office before the state created the district defender system in 1989, and that county public defender office was allowed to continue.
Unlike the district defender offices in all of the other 30 judicial districts, the chief public defender in Shelby County is appointed by and serves at the pleasure of the county’s mayor. This opens up the possibility that a county mayor could exert undue political interference on the Shelby County Public Defender Office. The county’s charter precludes the creation of an independent county commission to oversee the public defender office.
A private attorney is appointed to handle any juvenile delinquency case that is not handled by a district defender office. As required by the Tennessee Supreme Court rules, that private attorney is chosen and appointed directly by the local judge. This creates the potential appearance of undue judicial influence. The county and the juvenile court are powerless to change the rules of the state supreme court.
As a result, Shelby County and its juvenile court reported to the Department of Justice in October 2015 that they had “exhausted all local options to make further improvements in the area of defender independence.”
What is the DOJ recommending and why?
Tennessee law at first blush seems clear that each district defender office is responsible, in the first instance, for providing all right to counsel services within its district 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.” But as the state’s Supreme Court 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.
In Shelby County at the time the DOJ investigated, the public defender office only represented a small number of children in the juvenile court. Instead, most representation was provided by private attorneys, appointed by the juvenile court under the conditions imposed by the Tennessee Supreme Court rules.
The Tennessee Supreme Court rules set the amount each private attorney is paid in each case. In juvenile delinquency 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, and no matter how many hours a case actually requires of an attorney, the maximum amount the attorney can be paid to represent any child in a non-capital felony is $1,000. This fee structure created a conflict of interest between the financial interest of the appointed attorneys in maximizing their take-home pay and the interest of the children they were appointed to represent in receiving effective assistance of counsel. As a result, attorneys often devoted insufficient time to the cases of the children they were appointed to represent. Tennessee law does not establish any qualifications, experience, or training necessary for private attorneys appointed to represent children in juvenile delinquency proceedings (or in any type of case other than death penalty cases). And as the Task Force has found, the combined impact of low compensation rates and per case payment caps has diminished the number of experienced lawyers who are willing to accept appointments. As a result, children were provided lawyers who were untrained, unsupervised, and inexperienced. The local Shelby County juvenile court, and the county as well, deeply desires to be relieved of exercising undue judicial influence over the attorneys appointed to represent the children before it, but it is powerless to change the state’s system.
Faced with clear constitutional deficiencies in the representation provided through the private attorney appointment system, the DOJ requested and the county authorized the Shelby County Public Defender to provide an action plan. Entitled Blueprint to Achieve Compliance in Juvenile Defender Services, it recommends that the Shelby County Public Defender Office take over all representation of children in delinquency cases unless there is a direct conflict. This would minimize the number of children who are represented through the private attorney appointment process.
What is the difference between the DOJ recommendations and the Task Force recommendations for representation?
The DOJ recommends that the Shelby County Public Defender office be appointed to represent all children in juvenile delinquency proceedings unless the office has a direct conflict. The Tennessee Supreme Court Task Force makes the same recommendation (in fact, the Task Force recommends this in every county in the state). The difference between the two recommendations is who pays for that representation.
The state provides 100% of the funding for the private attorney appointment system. In Shelby County (and Davidson County), the state appropriates some funds for the operation of the public defender office, but the county is responsible for a significant portion of the funding. To shift a large number of juvenile delinquency cases from the private appointment system to the public defender office will necessitate a significant increase in funding for the Shelby County Public Defender office.
Shelby County has basically three methods available to it to try to increase funding for the public defender office. First, the state provides some funding for the county’s public defender office each year, and if the consumer price index rises, then fortuitously the state will increase the amount it provides. Second, the county can go directly to the legislature to request additional state funding. Third, the county can itself increase the amount it spends on the public defender office. We look at each of these options in turn.
1. State statutory funding
The precise amount that the state provides to Shelby County for its public defender office 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 state of Tennessee has long underfunded the Shelby County public defender office. As a result, future increases in state funding based on changes in the consumer price index begin from an inadequate base. Further, there is zero correlation between the resource needs of a public defender and the consumer price index (CPI). The CPI may increase or decrease regardless of the number of defendants requiring constitutionally mandated defender services. And, since the adoption of the CPI statute, the average annual CPI has decreased to now just one-tenth of a percent, mainly due to falling energy prices. The amount by which the CPI changes each year fluctuates and is unpredictable, preventing reliable budgeting by the public defender office. It is simply not possible to adequately expand the public defender office to provide increased juvenile services through this funding source.
2. Request additional state funding
In 2016, Shelby County requested an additional $1.1 million directly from the state. That request was denied. Because the state is not a party to the DOJ investigation and agreement, it is not under any pressure to increase funding.
3. Increase county funding
Shelby County increased the funding to its prosecutor’s office for fiscal year 2017. Under Tennessee state law, it is required to fund the public defender office at 75% of any increase to the prosecutor, and so the county increased funding to the public defender office for fiscal year 2017 in the amount of $500,000. The theory behind this funding stream, though, is that increased resources to the prosecution will result in increased workload of the public defender. So these funds are already necessary for the public defender office to carry out its existing duties. In other words, the county’s 2017 increase in funding to the public defender office merely maintains the status quo; it does not allow the office to add a significant number of juvenile cases nor an entirely new unit of staff attorneys.
Thus, if the public defender office is going to take over the bulk of juvenile representation, under the DOJ’s recommendation the county will have to fund it with new money. By contrast, the Supreme Court Task Force recommends that the state create a statewide commission to oversee all indigent representation throughout the state and oversee a single annual budget for all of that representation, with every district defender office providing all representation in every case unless it has a conflict.
What is wrong with requiring Shelby County to fund public representation?
Asking local government to remedy a problem caused in large part by the state is not advisable. As explained below, local funding of indigent defense services is poor public policy, violates national standards of justice, and stands in opposition to the public positions DOJ itself has taken.
1. Local funding of indigent defense services is poor public policy
The jurisdictions that are often most in need of indigent defense services are the ones that are least likely to be able to afford it. That is, in many instances, the circumstances that limit a county’s revenue – low property values, high unemployment, high poverty rates, limited household incomes, limited education, etc. – are the exact same circumstances that lead to high crime. Generally, in high poverty areas, a larger percentage of people accused of crime qualify for defender services. And, those same counties have to spend more on broad social services, such as unemployment compensation or housing assistance, meaning less money is available to be dedicated to upholding the Sixth Amendment to the Constitution.
Shelby County fits this profile squarely. Compared to the United States as a whole, 7.4% more people in Shelby County are in poverty. Shelby County’s poverty rate is 22.9%, compared to Tennessee’s 18.3% and to the national rate of 15.5%. Furthermore, the childhood poverty rate in Shelby County (35.5%) is greater than in Tennessee (26.2%) and the nation (22.7%). In 2014, the Memphis metropolitan area was ranked as having the greatest percentage of adults and of children living in poverty among the metropolitan statistical areas with populations exceeding 1,000,000. Memphis received this ranking in 2010, 2012, and 2013 as well. When considering metropolitan statistical areas with populations greater than 500,000, the childhood poverty rate in Memphis ranked third in the United States in 2014. As of 2013, half of the children living in poverty in Shelby County were living in extreme poverty. 23% of children in Shelby County lived in low-income families, and fewer than half of Shelby County’s children were economically secure, according to federal poverty levels.
Teen birth rates in Shelby County in 2011 were 51 per 1,000, compared to the national average of 31.3 per 1,000. The rate of births to unmarried parents in Shelby County in 2011 was 62.2%, compared to the rate for the state overall (44.1%) and the national average (40.7%). While infant mortality rates declined in Shelby County between 2009 and 2011, the infant mortality rate remained much higher than the national average: 9.6 infant deaths per 1,000 live births, compared to the national rate of 6.1. Shelby County has a 3% higher rate than the national average for people under the age of 65 who do not have health insurance.
Compared to the national average rates of home-ownership, Shelby County has a 6.4% lower rate, and the median value of homeowner occupied units is $44,000 less. The median household income in Shelby County is $7,269 lower than the national median. While nationally the total employment rate increased 2.4% from 2013 to 2014, in Shelby County it decreased by 0.3%.
These economic statistics occur against a backdrop of high crime. Comparing the FBI’s Uniform Crime Rate statistics and the Tennessee Bureau of Investigation crime statistics for 2014, Shelby County’s crime rates greatly exceeded that of other cities and counties of similar populations. Per 100,000 residents, Shelby County had 4.2 more murders & non-negligent manslaughters than the average comparably sized area (15.5 compared to 11.3); 85.4 more robberies (369.3 compared to 283.9); 369.9 more aggravated assaults (884.2 compared to 514.3); 446.2 more burglaries (1331.6 compared to 885.4); and 17.8 more act of arson (42.4 compared to 24.6).
Requiring Shelby County to take on the financial burden of providing juvenile indigent defense services — a problem caused in large part by the state — is unwise at best given these conditions.
2. Local funding of indigent defense services violates national standards and stands contrary to DOJ’s stated positions
The Department of Justice, in an unbroken line of public statements, court filings, and sponsored reports over four decades, has said that states (not counties and cities) are responsible for guaranteeing the Sixth Amendment right to effective assistance of counsel in their courts. This DOJ position reflects that of all national standards for public defense systems.
In May of 2016, then-Attorney General Loretta Lynch announced that the DOJ filed an amicus brief in a class action indigent defense lawsuit against the state of Idaho, stating: “[t]he right to adequate counsel is an essential safeguard of our commitment to equal justice – and it is the responsibility of the states to protect that right, to uphold that principle, and to ensure that every defendant has access to competent counsel.” The DOJ amicus brief said the state of Idaho is the party responsible for the systemic deficiencies there, despite the fact that trial-level indigent defense services in Idaho were entirely county-funded and administered at the time the lawsuit was filed.
These statements continued the policies of the previous DOJ administration. In 2014, the DOJ filed a statement of interest in a class action lawsuit against the state of New York and five of its counties. In that statement, the DOJ declares, “[t]he provision of defense services is a multifaceted and complicated task. To guide the defense function, the ABA and NJDC have promulgated national standards to ensure that defenders are able to establish meaningful attorney-client relationships and provide the constitutionally required services of counsel.” The DOJ listed as relevant standards, among others, numerous standards promulgated by the ABA. The ABA’s Standards for Criminal Justice – Providing Defense Services, standard 5-1.2(c) states a preference for statewide funding of defender services, noting in the commentary that services funded at the state level “have generally fared better than locally funded programs in resource allocation and quality of services.”
In February 2012, former Attorney General Eric Holder said the American Bar Association “quite literally set the standard” for reforming America’s indigent defense crisis through its promulgation of the Ten Principles of a Public Defense Delivery System. Mr. Holder went on to say that the ABA Ten Principles are “an essential guidepost for ensuring that our indigent defense efforts are as effective – and as efficient – as possible.” The commentary to ABA Principle 2 states unambiguously that, since “the responsibility to provide defense services rests with the state, there should be state funding and a statewide structure responsible for ensuring uniform quality statewide.”
For decades prior to the administrations of Attorneys General Holder and Lynch, the DOJ regularly supported these same views. For example:
- In 2001, the DOJ published a report on a Harvard University executive session on indigent defense services. That report concluded: “[s]ince the responsibility to provide defense services rests with the state to assure uniform quality statewide, systems should be funded and organized at the state level.”
- In 2000, the DOJ held its second national symposium on indigent defense. The resulting report said: “[s]tructuring and funding indigent defense at the state level improves the equitable allocation of resources and the uniformity of service quality, enhances accountability and training opportunities, provides improved cost efficiencies and reduced administrative redundancies, and leaves counties less vulnerable to budgetary shortfalls resulting from an unexpected caseload surge or a rare capital trial. Statewide defense systems are also consistent with the mandate of Gideon v. Wainwright that indigent defense is an obligation of the state.”
- In February 1999, the DOJ sponsored its first national symposium on indigent defense. The resulting report, Improving Criminal Justice Systems Through Expanded Strategies and Innovative Collaborations, stated: “[o]rganizing defense services through a centrally administered program promotes quality and uniformity of defense services, as well as cost-efficiencies, cohesive planning, and accountability.” That same year, the American Bar Association, Bar Information Program, was awarded a BJA grant to assist states in establishing statewide oversight and funding of indigent defense services.
- In 1978, a DOJ grant funded the creation of a Guide to Establishing a Defender System. That report stated: “the quality of defense services provided ought not to be a matter of geographical accident. The state is better able to fund these services both because of the availability of resources and removal from local politics. The state is also capable of allocating such resources so as to ensure uniformity among the counties, thus avoiding great disparities in the available services. Finally, since the majority of criminal statutes are enacted by state legislatures, the state bears responsibility for the burdens which ensue.”
- In 1976, the DOJ published Guidelines for Legal Defense Systems in the United States (a summary of the recommendations made by the National Study Commission on Defense Services, which was funded by the DOJ). Guideline 2.17 states: “[the primary responsibility for funding of defense services should be borne at the state level. Each state should provide adequate funding for all defense services within its jurisdiction regardless of the level of government at which those services are administered.” Guideline 4 continues: “Defender services should be organized at the state level in order to ensure uniformity and equality of legal representation and supporting services, and to guarantee professional independence for individual defenders.”
Independence of the defense function is not just good policy – it is the law. In the 1979 case of Ferri v. Ackerman, the U.S. Supreme Court determined that “independence” of appointed counsel to act as an adversary is an “indispensable element” of “effective representation.” Two years later, the Court said in Polk County v. Dodson that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” Observing that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the Polk County Court concluded that a “public defender is not amenable to administrative direction in the same sense as other state employees.” This was confirmed in Strickland v. Washington, where the Court stated that “independence of counsel” is “constitutionally protected” and that “[g]overnment violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense.”
The Department of Justice has made clear that establishing independence of the defense function is essential to Shelby County achieving compliance with its supervision agreement. All national standards agree that actual independence is best achieved through an independent commission to oversee all aspects of the provision of indigent defense representation. This is what the Tennessee Supreme Court Task Force is recommending for all indigent representation throughout the state. Its recommendations, if followed, will likely solve the problems plaguing the Shelby County juvenile court. We will keep you posted as things progress.
 All data in this section are from: Elena Delavega, 2015 Memphis Poverty Fact Sheet, University of Memphis 4 (2015); The Urban Child Institute, Data Book 2013, 22 (2013); Agency Crime Summary, Crime Statistics for Shelby County 2014, Tenn. Bureau of Investigation; 2014 Crime in the United States, Table 12 – Crime Trends by Population Group, 2013-2014, Federal Bureau of Investigation; 2015 Quick Facts: Shelby County, Tennessee, U. S. Census Bureau.
 Nancy Albert-Goldberg and Jay Lawrence Lichtman, Guide to Establishing a Defender System, National Institute of Law Enforcement and Criminal Justice (U.S. Govt. Printing Office 1978).