State must raise appointed lawyer rates
The chief justice of the Tennessee Supreme Court said this week the state must raise the reimbursement rate for attorneys who represent impoverished defendants.
Chief Justice Holly Kirby said Tuesday the court would seek legislative budget funding to support an $80 hourly reimbursement rate for attorneys in the coming year, though at least one attorney said the changes “fall short” of fixing endemic issues within Tennessee’s indigent defense system.
The Tennessean in September reported the state’s rate, the lowest in the nation, has squeezed Tennessee’s judicial system to a “breaking point,” as judges struggle to find attorneys to appoint to case that lawyers are hesitant to take on.
People who can’t afford an attorney have a constitutional right to legal representation, but Tennessee lawyers say they are now losing money defending clients for an hourly rate has only been raised $20 in the last 42 years.
Nearly half of all indigent cases involve families and child welfare in juvenile court, according to the Administrative Office of Courts. Davidson County Juvenile Court Judge Sheila Calloway told The Tennessean last month juvenile courts struggle to keep up with federally mandated case schedules as court staff scramble to convince attorneys to take on cases.
More:Why Tennessee’s system appointing lawyers for poor defendants is at ‘breaking point’
“Paying lawyers such low rates doesn’t make the cases go away. It just means cases are delayed, overturned, or returned to the trial court on appeal. That doesn’t help anyone,” Kirby said in a statement. “Victims are left waiting without justice and are retraumatized by additional proceedings. Children linger in foster care. Witnesses move and misremember, evidence deteriorates. It’s not efficient or cost-effective. Our citizens expect and deserve a fair, efficient, unbiased justice system. Right now, these issues hinder us from being able to give it to them.”
A Supreme Court-appointed task force in 2017 recommended raising the hourly rate to at least $75 but up to $125 and eliminating case caps. Those recommendations never materialized, which an Administrative Office of Courts news release said this week came down to a lack of funding from the General Assembly.
“$50 an hour was not adequate in 2017, when the Indigent Representation Task Force did its study. It’s even more inadequate today,” Kirby said. “Change must come.”
In the wake of the task force report, the office submitted a $20 million budget request for fiscal year 2019 and received $9.7 million from the General Assembly.
In subsequent years, both the Administrative Office of Courts budget request and the General Assembly’s appropriations have fallen under the 2019 request. In fiscal 2022, the the office requested $8.9 million and received $5 million. In fiscal 2023, it requested $5.7 million and received $3 million.
Kirby said the Supreme Court is “required to be fiscally responsible,” and the court is unable to raise rates unless their budget increases.
“If we started paying higher rates without a budget increase, the program could run out of funds before the end of the fiscal year and some folks would be paid nothing at all,” Kirby said. “This is for Tennessee families and children. It has to be a collaborative effort among all three branches of government.”
Dawn Deaner, former Nashville public defender and current executive director at the Choosing Justice Initiative, has raised the alarm about the court-appointed attorney system for years and now feels the system is in the worse shape “it’s ever been.”
Deaner said Wednesday the plans to raise the rate to $80 “fall far short of addressing the massive failures of the appointed counsel system.”
“The Court blames the legislature for the current ‘“’crisis,’”'” when the Court has been the sole architect and administrator of the system for decades,” Deaner said. “It has the power and the duty to fix the problems, but it has not had the courage or will to do it. Meanwhile, the people suffering the most aren’t the judges, or the lawyers, or the crime victims the Court mentions in its press release. It’s the thousands of people they didn’t mention who are caged in Tennessee’s jails awaiting trial on criminal charges, who are presumed innocent and deserve a fair defense, and who haven’t seen or heard from their appointed lawyer in months or years.”
Deaner believes the state needs “a comprehensive plan to restructure and improve the appointed counsel system,” while Sixth Amendment experts say states with adequately functioning indigent systems typically operate independent commission to oversee the system, rather than allowing state supreme courts to do so.
Reach Melissa Brown at mabrown@tennessean.com.
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