A “task force” set up by the Tennessee Supreme Court — visits to Knoxville and Johnson City this week after stops in West Tennessee last week — as part of a “listening tour” to hear complaints from lawyers and others about the state’s system for providing legal representation to the poor.
The Indigent Representation Task Force, chaired by former state Supreme Court Justice William Koch, now dean of the Nashville School of Law, is widely seen as a prelude to the court asking the Legislature in 2017 for an increase in funding for the system. The group was established in October after the 2015 legislative session spurned an attempt — led by the Tennessee Bar Association — to increase fees paid attorneys appointed to represent the indigent in criminal cases.
The current rates, unchanged since 1994, provide for lawyers being paid $40 an hour for out-of-court work and $50 an hour for in-court work. There’s also a cap on the total amount that can be paid in a case, which varies depending on the type of crime involved but generally set at $1,000 in most felony cases. The ceiling ranges from $500 in some categories, including those involving juvenile defendants, to $5,000 when the defendant is charged with first-degree murder.
Fees allowed or others approved by a judge to help an indigent defendant, such as expert witnesses or investigators, are higher so that the appointed lawyer is often “the lowest-paid person in the courtroom,” according to Allan Ramsaur, executive director of the Tennessee Bar Association.
Public defenders typically represent the indigent in criminal cases — and often complain they are understaffed and underfunded — but in many cases they cannot and judges then appoint a lawyer, who is bound by the present fee system.
In Williamson County last week, the public defender announced her office is so overworked that no new cases are being accepted barring exceptional circumstances, according to local media reports. Ramsaur said in many rural counties a multi-defendant criminal case will lead to virtually every lawyer in town being appointed to represent someone and, since lawyers are generally obliged to accept such appointment, they are pulled away from other work.
According to a Supreme Court news release, the current state budget provides a total of about $36 million for representation of the indigent in both criminal and civil matters — $19 million statewide for attorneys representing the indigent in criminal cases, about $12.5 million in child welfare cases and the rest for other matters including mental exams, expert witnesses and investigators.
“We must not accept anything less than the most qualified representation in our courts, but we must also be sure that those receiving indigent representation qualify for those services and that the lawyers who perform the services are adequately compensated,” said Supreme Court Chief Justice Sharon Lee.
A bill (HB1025) proposed in 2015, with TBA support and Democratic sponsors, would have raised the rate of pay for lawyers appointed in criminal cases to a flat $100 per hour, regardless of whether their work was in or out of court, and lifted the caps on overall payments. The legislative staff “fiscal note” estimated the cost to the state budget at $44 million per year. The bill was never brought up for a vote.
This year, two Republican legislators — Rep. Mark Pody of Lebanon and Sen. Ferrell Haile of Gallatin — introduced a bill (HB1445) that would have set the rate at $75 per hour. The cost of that measure was pegged at $21 million in new state spending annually in the “fiscal note.” It never came up for a vote either.
Ramsaur said in an interview that the TBA decided not to push the issue this year, despite a state budget surplus of more than $600 million on hand at the outset of the session that wound up being otherwise allocated, because of the Supreme Court’s pending Indigent Representation Task Force and its “listening tour.”
The task force is looking at other aspects of representing the poor in court as well, including civil litigation and complex conflicts that can arise. For example, he said a methamphetamine bust in one rural county had 10 defendants — most given an appointed attorney — and spinoff civil lawsuits involving child custody, divorces and the like. There are other issues, such as whether the results of an expert witness’s review of evidence — a ballistics report, for example — must be turned over to prosecutors before the trial when the expert witness was paid with taxpayer money.