Pleading the Sixth: (Part 2 of a two-part series.) The United States Department of Justice, Civil Rights Division (DOJ-CRD) delivered a report to Shelby County, Tennessee (Memphis) in April 2012 stating the local court fails to ensure due process to children in delinquency courts. The Sixth Amendment Center discusses the implications for future changes to juvenile representation in Shelby County, and in a companion piece, details the DOJ-CRD report to illuminate why the county is being cited in a supposedly “state-funded, state-administered” jurisdiction.
In the wake of the U.S. Department of Justice, Civil Rights Division (DOJ-CRD) report stating that the county “fails to ensure due process for all children appearing for delinquency proceedings,” Shelby County (Memphis) policymakers are considering closing down the Juvenile Defender’s Office (JDO), as reported in the August 12, 2012 Memphis Commercial Appeal. To alleviate the independence concerns identified by DOJ-CRD, Shelby County officials are reportedly considering moving juvenile representation under the auspices of the Office of the Public Defender (OPD). (Note: subscription required to read Commercial Appeal articleson mobile devices)
The Sixth Amendment Center applauds Shelby County policymakers for making “independence” the initial focus of reform. However, just switching delivery models without adherence to national standards (and, in particular, the American Bar Association, Ten Principles of a Public Defense Delivery System) will not resolve the problems identified by DOJ-CRD. For example, it would not make sense to move juvenile delinquency services to OPD without first ensuring that OPD itself meets ABA Principle 1’s demand for independence. Besides “removing oversight from the judiciary,” ABA Principle 1 requires jurisdictions to have public defense functions that are independent from “political influence” as well. ABA commentary on Principle 1 suggests that a “nonpartisan board should oversee defender, assigned counsel, or contract systems” rather than have defender administrators appointed by a government agent, as is currently done in Shelby County (where the County Mayor appoints the OPD Chief).
Issues in regards to the resources needed to improve services also await Shelby County decision-makers. Given that Memphis is by far and away the poorest urban center in America (26.5 percent of Memphis residents live in poverty) while being one of the top six most dangerous cities based on FBI crime data, Shelby County policy-makers must address the DOJ-CRD report from the unenviable position of having to meet high demand with limited resources. Should Shelby County rely exclusively on local funding to bring juvenile representation under the auspices of OPD it may create the unintended consequences of negatively impacting the quality of the current adult representation, as local funds traditionally used for the adult side are diverted to improve juvenile representation.
Similar potential financial pitfalls exist should Shelby County policymakers involve state policy-makers in looking for funding at the state level. Had Shelby County been receiving annual increases in “an amount equal to the percentage of any general increases in appropriations for district public defenders” as statutorily mandated under Tenn. Code Ann. § 8-14-210, simple math indicates that the OPD would have received an additional $3.5 million in state funding in 2012. Getting that gap filled appears to be a critical first step. At the very least, the state will need to adjust its baseline funding for Shelby County under Tenn. Code Ann. § 8-14-210 to account for any new juvenile court services OPD provides. Since OPD was not handling any juvenile representation when that baseline was set in 1992-93, using the original, non-adjusted baseline to calculate future increases would further strain limited resources for available for both adult and juvenile representation in Memphis.
While it appears that Shelby and Davidson counties have not kept pace with the Tennessee District Public Defenders Conference (TDPDC) over the past 20 years as statutorily mandated, it is important not to conclude that TDPDC is therefore adequately funded. TDPDC has been drastically underfunded since its inception. As detailed in a Spangenberg Group (TSG) report in 1999, TDPDC faced budget shortfalls in the first three-years of its existence leading almost every district defender to have excessive caseload:
The most dramatic point came in November 1991, when the Knox County Public Defender requested, by motion, that the four General Sessions court judges suspend further case appointments to it. Assignments to the Knox County Public Defender were temporarily suspended, but the court’s solution to handling the overflow sparked outcry within the bar. The court issued notice to every bar member in the county that he or she, without exception, would be expected to take an appointment to a criminal case to help distribute the overflow of cases.
As the debate about how best to fund the TDPDC intensified, the Tennessee General Assembly announced in 1997 that it would not fund new attorney positions to the TDPDC until a “case-weighting” study was conducted. “Case-weighting” is a term of art for an objective time study that measures how public defenders spend their time and determines appropriate time from assignment-to-disposition averages by case type (or “weights”) that can ultimately be used to determine the appropriate number of attorneys needed to handle an office’s caseload.
A January 2011 report by the Tennessee Administrative Office of Courts, Tennessee’s Indigent Defense Fund: A Report to the 107th Tennessee General Assembly reviewed the results of the case-weighting study and found that questions of reliable data put the recommended staffing increases in some doubt. For example, even the authors of the case-weighting report (The Spangenberg Group) unequivocally cautioned that “a large percentage of juvenile defendants in the state go to court without counsel. Attorney staffing estimates will change if juvenile cases are handled by all of the districts.” Still, the AOC 2011 report notes that even when taking these concerns in mind, “the results showed a need for over 100 additional public defender positions at that time. Even with a wide margin for error, the study demonstrates that additional positions are needed.” The AOC report concludes that the state of Tennessee has not funded enough attorney positions “to allow public defenders to handle all cases that they are already statutorily required to handle.”
When the right to counsel was expanded to include jailable misdemeanor offense, the U.S. Supreme Court suggested in Argersinger v. Hamlin, 407 U.S. 25 (1972) that states could deal with the anticipated costs by removing minor offense out of the formal criminal justice system. State and local policymakers can, for instance, work together to increase the reliance on diversion that could remove juvenile and adult defendants out of the formal criminal justice system and get them help with potential drug or other dependencies. Similarly, lawmakers can change low-level, non-serious crimes to “citations” – in which the offender is given a ticket to pay a fine rather than being threatened with jail time thus triggering the constitutional right to counsel.
Even as the 2011 AOC report raises the possibility of increasing the use of diversion/treatment and reclassification of minor crimes to reduce demand on the indigent defense system, the report notes that even on this front Tennessee faces more hurdles than other states. Tenn. Code Ann. § 40-14-102 provides that “[e]very person accused of any crime or misdemeanor whatsoever is entitled to counsel in all matters necessary for the person’s defense, as well to facts of law.” Such a broad right to counsel statute will still entitle the indigent accused to a lawyer whether or not jail is taken off the table.
Though none of the options explored above will be easy, it is critical that the issues be resolved. As OPD Chief Defender Bush says in the August 12, 2012 Commercial Appeal: “Getting it right is important… [h]ow a child is represented can be the difference between a productive life and continuing down the path to the adult criminal justice system.”