TBA Law Blog


Posted by: Elizabeth Todaro on Jan 1, 2018

Journal Issue Date: Jan 2018

Journal Name: January 2018 - Vol. 54, No. 1

Tennessee Embarks on Once-in-a-Generation Opportunity for Change

Tennessee is embarking on a “once-in-a-generation” opportunity to make fundamental changes in an aspect of the justice system that impacts thousands of vulnerable individuals and families every day.[1] The stakes are high in cases served by indigent representation programs: defending the rights of individuals accused of crimes, protecting those facing involuntary hospitalization or loss of their children, as well as protecting vulnerable juveniles in abuse, neglect and abandonment situations. Providing quality legal representation for these individuals reflects a “collective belief that all Tennesseans should be treated fairly when the government seeks to interfere with their most fundamental rights and liberties.”[2]

The systems providing public defenders and appointed counsel touch nearly every aspect of the justice system and the bar, and there are many perspectives weighing in on the recommended changes. Reforms in the indigent representation system have been part of an “aggressive agenda” for the Tennessee Supreme Court in recent years, with the goal of “improving the service the judiciary provides to attorneys and adapting to better meet the needs of litigants,” according to the Administrative Office of the Courts (AOC). Additionally, the Tennessee Bar Association and other organizations representing the legal community are actively engaged in advocating for modifications in most every aspect of the indigent representation system.

“Tennessee's lawyers care deeply about improving the representation of people in need,” Tennessee Bar Association President Lucian T. Pera says. “Under the Constitution, all Tennesseans have a constitutional right to a lawyer in criminal cases. The TBA looks forward to working shoulder-to-shoulder with the court to move Tennessee in the right direction.”

What Is the Indigent Representation System in Tennessee?

Tennessee currently spends more than $36 million annually on programs serving thousands of individuals who are constitutionally guaranteed representation but cannot afford to pay for it, according to the AOC.[3]  However, the programs responsible for providing legal representation to eligible adults and children are not centrally administered and operate with a lack of uniformity that impairs the state’s “ability to provide appropriate representation services in an efficient, cost-effective and accountable way.”[4]  

It is the state’s obligation to provide and/or oversee the provision of legal representation in these cases, as guaranteed by both the federal and state constitutions. While the justice system relies on smooth functioning of the indigent representation structure, the reality is the thousands of Tennessee attorneys who are providing critical, life-changing representation for individuals and families are paid at some of the lowest rates in the country. Concerns regarding compensation rates for appointed counsel have been raised by the TBA and other groups over the years, but the rates and caps have remained unchanged for two decades.[5]   

Many of these attorneys are new to the practice of law and have few options for training and support. In fact, there are no requirements in Tennessee for the qualifications of appointed counsel. While there are options for brief overviews of criminal defense resources and local practice, this training is rarely mandatory and only passage of the bar is required to be eligible to take on representation of indigent clients and receive compensation from the AOC.

Unfortunately, over time Tennessee’s programs providing legal assistance to eligible adults and children have become “overloaded,” because of a “dramatic increase in the ratio of cases to the justice system’s capacity during the past 20 years,” according to the Tennessee Supreme Court's Indigent Representation Task Force. Other factors burdening the system include institutional inertia with regard to streamlining procedures, a reluctance to embrace technology and increasing complexity of judicial proceedings. Another persistent challenge is that even when change is implemented, there is a “continued focus on the needs of the individual stakeholders rather than the needs of the judicial systems as a whole.” This lack of a “uniform voice regarding the needs of the entire system” has contributed to competition for available resources that ultimately undermines the efforts of the very individuals working so hard to provide quality representation. While those involved with indigent representation programs may be “using their best efforts to fulfill their professional obligations as effectively and efficiently as possible,” there is consensus that the current system is “not sustainable without receiving additional resources.”[6]

Addressing the Crisis in Indigent Representation

Tennessee is not alone in facing a crisis in our system of providing for indigent clients, and fortunately our Supreme Court, bar associations and others in the legal community understand the need to consider reforms. Specifically, the Tennessee Supreme Court has indicated that as a state, we need to find a new approach, and cannot keep doing things the same way and hoping for a different result.

In September 2015, the Tennessee Supreme Court announced the creation of a task force to “study the overall system to determine how the state can deliver the right to counsel in a more efficient manner and seek out innovative concepts from other jurisdictions and determine how they could be implemented in Tennessee.” William C. Koch Jr., former Tennessee Supreme Court justice and now dean of Nashville School of Law, was appointed chair of the task force, serving alongside a dozen other leaders from the legal community. Task force members represent all three branches of Tennessee government, academia, the private bar and legal aid.

In 2016, the Indigent Representation Task Force held a series of public meetings and engaged in a statewide listening tour, ultimately hearing from nearly 90 people, including judges, lawyers, court clerks, judicial associations, justice-involved organizations, members of the public and bar associations.

Last spring, the task force issued a comprehensive report on the status of the system of provided counsel. The report, Liberty & Justice for All: Providing Right to Counsel Services in Tennessee, was nearly a year and a half in the making. The 200-plus page resource examines some of the many reasons why the system is overloaded, including increase in new criminal offenses and complexity of proceedings. The task force “reviewed studies and reports detailing how other states provide legal representation” to eligible individuals and “consulted with national organizations regarding standards” from across the country.

Most significantly, the report includes substantial recommendations for changes in the way indigent representation is managed in Tennessee. From raising compensation levels and removing caps to decreasing the frequency of utilizing appointed counsel, the report addresses many aspects of the current systems and makes sweeping recommendations for change. The report captures a necessary tension at the foundation of reforming the indigent representation system: “dual demands for effective representation and accountability to the public.”

Task force chair Koch indicates that the balance of performance and accountability was a central theme of the group’s recommendations that would hopefully “enable the state to run [indigent representation] programs more like a business; accounting for what is being spent, tracking outcomes and measuring impacts while ensuring quality of representation and reasonable caseloads.”

Key Recommendations from the Indigent Representation Task Force, Tennessee Supreme Court, TBA and Others

The recommendations of the Indigent Representation Task Force fall into three main areas of reform: promote statewide uniformity in the programs providing legal assistance in the state, improve the quality of legal assistance being provided and enhance the management and oversight of these programs. (See the full list of task force report recommendations.)
In October 2017, the Tennessee Supreme Court announced that it would support reform of the state’s indigent representation system, including seeking funding to increase attorney compensation rates and caps. While the court has not embraced all of the Task Force’s recommendations, Chief Justice Jeff Bivins acknowledges significant troubles with the current system and a need for reform.

“The task force confirmed what many of us already suspected,” Bivins said in a press release. “The system needs major reforms. While no perfect solution exists, the court believes the improvements we commit to today will move the state toward a more efficient, effective means of providing the representation that our federal and state constitutions guarantee.”

The court has voiced support for elements of reform that get at the crux of the crisis in the indigent representation system: a need for additional funding and more uniformity in management and oversight. Some of the changes the court supports will require legislative action, while others are court rules or addressing system logistics. Most all aspects of the proposal will require approval for increased funding, which the court has indicated it will request.

Specifically, the court expects to support legislation creating a statewide commission that will provide consistent oversight and support for the indigent representation system. An indigent representation commission is not a new concept for Tennessee, having been proposed at least three times over the past 40 years. While past recommendations for a centralized approach were rejected as experimental or untested, a majority of states have now implemented some form of independent and accountable commission to address “the need for a unified voice in setting policy, seeking funding and overseeing programs.”[7] Koch notes that “a key part of the task force recommendation is the creation of a commission; one body that is devoted to managing this system and that will provide the transparency and accountability that is necessary.”

The court also endorses a recommendation to increase attorney compensation to $65/hour, up from the current $40 (outside court) and $50 (court appearances) rates, as well as seek an appropriation request to raise compensation caps by $500 for felonies and $250 for juvenile matters (up from $1,000 and $1,500). These rates and caps have not changed in 20 years and while the increases are not as substantial as what was recommended in the task force report, they would bring Tennessee closer to market compensation rates for appointed representation.

In addition to the need for an independent and accountable commission to help implement the reforms, Koch echoes the necessity to first and formost address a long-overdue pay increase. “The current crying need for adequate compensation for attorneys had to be addressed first, to ensure that attorneys be paid fairly when they are appointed,” he says.

The court also endorses the recommendation to establish an appellate division to handle all appeals coming up from public defenders’ offices, as well as establishing a conflicts division to provide increased oversight and evaluation of conflicts, to facilitate more representation by public defenders, avoiding some appointments of private attorneys.

Jessica Van Dyke, Nashville attorney and chair of the Tennessee Association of Criminal Defense Lawyers’ Indigent Defense Funding Committee, highlights the holistic goals of reform and notes that while additional resources are requisite to change, other improvements are necessary, as well.

“The point is not just to have better compensated attorneys, but to have the best, well-trained and supported attorneys, representing people in some of the most significant issues in their lives,” she says. “Better representation will also bring about better outcomes, not just for the individual clients, but for their families, communities and for the justice system. The bottom line is that we all need to understand that we cannot continue to put forth services for the number of defendants we have been serving for the same amount of money. There must be a movement to increase funding as well as support for the indigent representation system in a smart, consistent and efficient way.”

The Tennessee Bar Association praised the Supreme Court for leading the effort at reform and voiced support for the efforts of the task force. TBA President Pera commented that the report “paints an accurate and not very pretty picture” of the indigent representation system, but “more importantly, it paints a picture of a way forward … a comprehensive structure and proposal for how to move indigent representation forward.”

Pera continues: “In appointing the Task Force on Indigent Representation, and now forcefully endorsing its recommendations, the court is leading the way to serious indigent representation reform. Beyond simply raising rates and caps, the court is putting the pieces in place to really improve the system for all Tennesseans. … For too long Tennessee has been at the very bottom of the heap nationally in the way we fund representation of indigent defendants, as well as juveniles caught in the system. The court's recommendations regarding rates and caps is a step in the right direction. Frankly, it is a small step, and it is not enough; but it is a start.”[8] 

Notes

  1. TBA Press Release, “Tennessee Bar Association Voices Support for Indigent Representation Reform,” Oct. 4, 2017, www.tba.org/press-release/tennessee-bar-association-voices-support-for-indigent-representation-reform.
  2. Liberty & Justice for All: Providing Right to Counsel Services in Tennessee, a report from the Tennessee Supreme Court's Indigent Representation Task Force, April 2017, p. 1.
  3. AOC Press Release, “Chief Justice Lee Outlines Major Plans for Upcoming Year,” Sept. 16, 2015, www.tncourts.gov/news/2015/09/16/chief-justice-lee-outlines-major-plans-upcoming-year.
  4. Liberty & Justice for All.
  5. Liberty & Justice for All, p. 6.
  6. Liberty & Justice for All, p. 5-6; 16.
  7. Liberty & Justice for All, p. 18-19.
  8. TBA Press Release, supra, note 1.
     

Liz Todaro LIZ TODARO is the Tennessee Bar Association’s access to justice director. She received her law degree from the City University of New York.