Pleading the Sixth: Tennessee has a grand tradition of holding almost every government function directly accountable to the electorate. However, a major structural flaw in how the state’s indigent defense budget is requested, defended and allocated between the state’s elected public defenders results in excessive caseloads and poor performance across the state. The 6AC exposes this flaw that results in the voting public in the state’s three most populous counties having almost no voice in the debate. (Watch a video on this topic: Redefining the Right to Counsel in Tennessee.)
In his first annual message to Congress in December 1829, President Andrew Jackson stated: “[i]n a country where offices are created solely for the benefit of the people no one man has any more intrinsic right to official station than another.” Intended as a broadside against lifelong government bureaucrats unaccountable to the electorate, Jackson’s home state of Tennessee has, over time, institutionalized public elections for almost all government functions (e.g. every court clerk in every Tennessee court is an elected official). Unfortunately, in the creation of the Tennessee District Public Defender Conference (TDPDC), the Tennessee legislature did not adhere to the long held traditional value that the best government is the one closest to the people. This non-intentional omission created a dynamic in which the TDPDC fails to request appropriate resources, causing public defenders across the state to carry too many cases and triaging their ethical duties they owe each and every defendant, as detailed below.
The Tennessee District Public Defender Conference
The voting public in all but one of Tennessee’s 31 judicial districts elect a chief defender to either a four or an eight-year term. (For ease of the reader, this is admittedly an oversimplification of Tennessee’s more complex right to counsel structure; for a complete understanding, click here.) To promote a more prompt and efficient administration of justice, and to coordinate policies amongst the 31 chief public defenders, the legislature created the Tennessee District Public Defender Conference (TDPDC).
The TDPDC was intended to serve as a uniform voice of the defense function in relation to all other government functions, particularly in consideration of new or needed legislation. The TDPDC also is responsible for submitting a budget request for state indigent defense funding, which TDPDC then disburses to the defender districts. District defenders are elected to serve on the TDPDC executive committee overseeing the TDPDC, as well as on all sub-committees on policy and budget, on a simple majority vote of the district defenders themselves. To assist the 31 district defenders manage their affairs, TDPDC has a permanent director and staff. The TDPDC director is elected to a four-year term, again on a simple majority vote of the district defenders.
The TDPDC director is statutorily charged with, among other duties: serving as the liaison with various branches of state government; preparing, submitting and defending budget requests for the operation of district public defender offices; administering payroll; and coordinating the development of training.
Why the Structure of TDPDC is flawed
Because all TDPDC business is conducted on a simple majority vote, the least populated districts in the state can form a majority-voting bloc. That is, the public defenders from Tennessee’s ten most populous judicial districts, representing 55.89% of the state’s total population, only get 10 out of 31 votes on the TDPDC (a 31% minority vote). Therefore, the 21 public defenders from the state’s least populated districts have, in effect, veto power over the entire funding process for all public defenders across the state.
Indigent defense practices vary greatly depending on whether a jurisdiction is viewed as urban, suburban, or rural. For example, public defenders in more rural areas generally have less criminal cases, but often have to contend with longer driving times to get to see clients in jail or to simply cover court dockets in a greater number of counties within the district. Single-county urban jurisdictions may not have as great an expanse to cover, but they tend to have more cases in general, and of greater severity, causing different stresses on the representation system. Moreover, national experience dictates that public defenders in more rural jurisdictions tend to have a “bunker mentality” whereby they either do not understand the parameters of ethical performance – and therefore do not recognize their current caseloads as being excessive – or they fear that raising funding concerns in the legislative arena will result in policymakers cutting resources further.
With the TDPDC executive director beholden to the rural public defenders for his position, he has a direct financial conflict of interest. That is, the TDPDC executive director is conflicted between seeking the requisite funding needed to bring caseloads into compliance with national standards on the one hand, and on the other executing the policies of rural public defenders in order to maintain his job and salary.
The conflict is most readily apparent when it comes to budget. In consideration of appropriate budgets, the TDPDC, in effect, encompasses only 29 of the state’s 31 judicial districts. Because Davidson County (Nashville) and Shelby County (Memphis) had established public defender offices prior to the creation of TDPDC, those two single-county districts do not participate in the budgetary process of TDPDC at all. Historically, Davidson and Shelby counties’ state funding for the right to counsel was entirely dependent on what TDPDC requested and was appropriated by the legislature. Until this year, those two counties were entitled to an increase in state funding equal to the percentage increase TDPDC was able to obtain for itself.
In short, the state public defender funding for Shelby and Davidson counties was nothing more than a statutorily required math problem (and one that, according to the 6AC’s discussions with the district defenders in Davidson and Shelby counties, the state historically failed to compute correctly). Now, those two counties’ state indigent defense budget is tied to the consumer price index (which has no connection to workload needs; indeed, public defender workload often increases in bad economic times when the consumer price index may go down).
What this all means is that the remaining urban districts, Hamilton (Chattanooga) and Knox (Knoxville) counties, only get two of the remaining 29 votes. Those public defenders have the same level of voting power as the public defenders in the 29th and 31st districts, despite the fact that Hamilton and Knox counties have a combined population of 793,295 while the 29th and 31st districts represent a population of only 91,492. Indeed, because it is a single county district, the public defender from Coffee County (representing only 53,357 people) has an equal vote to the defender in either Chattanooga or Knoxville, and more say over the state-funding proposal than either the public defender in Davidson County (658,602) or Shelby County (939,465).
Tennessee is the only state with this constitutional conflict
The majority of states with state-funded indigent defense systems resolve the urban-rural issues by having a single, independent voice speaking on behalf of both interests. For example, 19 states have statewide public defender commissions overseeing all right to counsel services (both primary and conflict cases). These statewide commissions have the authority to hire a chief public defender or executive director who then interacts with other governmental agencies, including creating and defending budgets. They present budgets that are correlated to an appropriate number of cases (even if the definition of an “appropriate caseload” varies from rural jurisdictions to urban jurisdictions). And, if the chief is successful at obtaining state resources, the chief assigns new public defender personnel wherever the need is greatest (as opposed to dividing resources into equal shares among districts, as has been the case with TDPDC in the few instances when new funding has been requested).
Additionally, there is only one other state in the country that has decided to let the people of the state elect their public defenders: Florida. However, the organizing body of the Florida elected circuit defenders is different than Tennessee’s District Public Defender Conference. Most notably, there are significantly fewer elected public defenders in Florida (20) than there are in Tennessee (31). This is true despite the fact that Tennessee has a population (6,495,978) that is approximately a third of the size of Florida’s population (19,552,860). Because there are fewer elected public defenders in Florida, some rural regions of the state are more aligned with regional urban centers, thus mitigating some of the “bunker mentality” often associated with more rural public defenders come budget time. Indeed, if Tennessee had the same proportion of public defenders to population as Florida, Tennessee would have only six or seven elected public defenders. And, if four of those seven hypothetical Tennessee districts were centered in Davidson, Shelby, Knox and Hamilton counties, the voting power of a newly cnstructed TDPDC would then be in the hands of the most populated jurisdictions in Tennessee.
Thus, if the voting constituents in Florida need to be rallied to advocate for proper right to counsel resources they can be (though, of course, their effectiveness is still dependent on their ability to persuade legislators to do so – as it should be). But, in Tennessee, this power to try to persuade legislators is taken away from the majority of the electorate. The voting constituencies in Davidson, Hamilton, Knox and Shelby counties, for example, cannot be similarly rallied by their elected public defenders to impact the legislative budgeting process because everything related to state funding of indigent defense services in Tennessee flows through the TDPDC executive director, who is beholden only to a majority vote of the conference itself. In short, the voice of the people is negated on indigent defense issues in Tennessee.
The Sixth Amendment Center (6AC) does not assign blame to anyone for this structural defect. Indeed, we believe that the vast majority of problems associated with the deep-rooted, long-standing indigent defense issues this country faces, developed over time bit by bit rather than by conscious intent to undercut the Constitution. Indeed, the 6AC agrees with the sentiments of President Jackson in his 1837 farewell address to Congress:
Never for a moment believe that the great body of the citizens of any State or States can deliberately intend to do wrong. They may, under the influence of temporary excitement or misguided opinions, commit mistakes; they may be misled for a time by the suggestions of self-interest; but in a community so enlightened and patriotic as the people of the United States argument will soon make them sensible of their errors, and when convinced they will be ready to repair them. If they have no higher or better motives to govern them, they will at least perceive that their own interest requires them to be just to others, as they hope to receive justice at their hands.
Because there is no one person or group to blame for the indigent defense issues in Tennessee, the 6AC chooses to look forward rather than back. As Tennessee criminal justice stakeholders and policymakers debate and decide how best to address this structural flaw, the 6AC offers that there is no single, off-the-shelf remedy that must be employed to fix this constitutional issue. In an effort to stimulate further discussion, the 6AC offers four different ideas that could potentially fix the flaw while honoring the Tennessee tradition of electing public officials:
a) Eliminate the position of TDPDC executive director in favor of an executive secretary that executes the policies of all 31 elected district defenders based on proportional representation voting (i.e., state-funding for Davidson and Shelby counties would be included in the TDPDC budget and the votes of the district public defenders in Davidson, Hamilton, Knox and Shelby counties would weigh more than the votes of elected district defenders in the least populated districts).
b) Following Florida’s lead, consolidate existing public defender districts (to eliminate the vast disparity in populations served across the state) by electing public defenders on a regional basis that encompasses a greater number of judicial districts per region.
c) Elect a state Defender General to oversee all indigent defense services in Tennessee to take the place of the TDPDC executive director, and make the current district defenders appointed positions of the new Defender General (rather than locally elected positions).
d) Abolish the TDPDC in favor of a statewide commission appointed by and/or confirmed by policy-makers elected by the Tennessee electorate.
The 6AC will keep you posted on any developments.
 Tennessee’s overall population is 6,495,978. The ten most populous judicial districts have a combined population of 3,631,248: District 2 (Sullivan County –pop. 156,595); District 5 (Blount County – 125,099); District 6 (Knox County – 444,622); District 11 (Hamilton County – 348,673); District 16 [294,804 (Cannon County – 13,775, Rutherford County – 281,029)]; District 18 (Sumner County – 168,888); District 19 [251,502 (Montgomery County – 184,119, Robertson County – 67,383)]; District 20 (Davidson County – 658,602); District 21 [242,998 (Hickman County (24,267), Lewis County (11,961), Perry County (7,869), and Williamson County (198,901)]; and, District 30 (Shelby County – 939,465). All population data is this article is from the United States Census Bureau at http://quickfacts.census.gov/qfd/index.html.
 Tennessee’s District 29 is comprised of Dyer County (38,213) and Lake County (7,731). District 31 encompasses Warren County (39,965) and Van Buren County (5,583).
 Arkansas, Colorado (2 separate commissions for primary and conflict services), Connecticut, Hawaii, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Mexico, North Dakota, Oregon, Virginia, West Virginia, and Wisconsin. Inclusion on this list does not imply that these states necessarily have eliminated all undue political and judicial interference. Some commissions are designed better than others.
 Florida and Tennessee are the only two states that fund indigent defense at the state level and elect chief defenders. There are other county-based public defender systems that elect chief defenders by popular vote. In Nebraska, counties with populations exceeding 100,000 are required to establish public defender offices with popularly elected chief defenders at the helm [Douglas County (Omaha), Lancaster County (Lincoln) and Sarpy County (Papillion)]. Should any county with less than 100,000 residents voluntarily establish such an office, their chief public defender must likewise be locally elected. Approximately one-quarter of all counties have done so (23 elected defender systems in Nebraska’s 93 counties). Finally, the chief public defender for the city and county of San Francisco, California is also elected.