Almost a year-and-a-half after the Tennessee Supreme Court created it to review how Tennessee provides legal representation for poor criminal defendants, the Indigent Representation Task Force is presenting a set of recommendations Monday. Chief among them: Give District Public Defenders enough money to do their jobs and create another task force, one that would consider whether to create "an independent central commission to oversee" public defense in Tennessee.
Although it avoids crisis language, the report makes it clear that the state's criminal justice system, including the part of it designed to uphold the right to an attorney, is overloaded.
“The information gathered by the Task Force established that there has been a dramatic increase in the ratio of cases to the justice system’s capacity during the past 20 years," the report says in an executive summary. "While the system has used its best efforts to manage the increasing caseload, its ability to continue doing so is not sustainable without additional resources.”
The task force's report is extensive, at more than 200 pages, detailing the history of public defense in Tennessee, the system's current architecture and the challenges it faces. Those challenges are acute in Nashville, where Metro Public Defender Dawn Deaner has take significant steps to limit the number of cases her office takes on out of concern that an unmanageable workload — and inadequate funding — is preventing poor defendants from receiving the defense to which they are constitutionally entitled. That predicament was the subject of a Scene cover story earlier this year.
A release from the task force sums up its conclusions:
The Task Force recommends in its report that Tennessee (1) promote statewide uniformity in the programs providing legal assistance, (2) improve the quality of legal assistance being provided and (3) enhance the management and oversight of these programs.The report offers seven detailed recommendations to improve the delivery of legal representation to those who cannot afford it.
1. Completing a statewide data and reporting system to ensure the availability of timely and complete information required to manage and oversee the programs;
2. Seriously considering the creation of an independent central commission to oversee all programs providing legal representation to eligible adults and children and transferring current programs to the new commission;
3. Developing and implementing uniform statewide criteria and procedures for determining eligibility for services;
4. Amending Tennessee Supreme Court Rule 13 to eliminate the distinction between out-ofcourt and in-court compensation rates, to eliminate case caps and the “complex and extended” designation procedure, and to increase the rate paid to appointed private counsel to an hourly rate not less than $75 nor more than $125;
5. Enacting a statutory requirement that public defenders be appointed to represent eligible parties in criminal and delinquency proceedings unless the public defender has a conflict of interest;
6. Appropriating sufficient funds to the District Public Defenders to enable them to represent as many defendants in criminal proceedings and children in delinquency proceedings as possible;
7. Adjusting Tennessee Supreme Court Rule 13’s caps on compensation paid to experts to market rates.
Patrick Frogge, executive director of the Tennessee District Public Defenders Conference, described the report as a positive step.
“I am encouraged by the report overall," he tells Pith. "I think the task force engaged in a lot of difficult work and I’m encouraged by the fact that they reaffirmed Tennessee’s commitment to public defenders as the default mechanism for the delivery of indigent defense services. The task force, at least, evinces a commitment to fully equipping public defenders to meet their constitutional obligation and it gives suggestions for reform going forward.”
Deaner supports the independent commission model described in the report, an arrangement used by 34 states.
"I am grateful for the Task Force's hard work over the past 16 months, and I support its recommendation for an independent Commission to oversee how Tennessee delivers right-to-counsel services," she says. "The Task Force report makes clear that Tennessee's current system is plagued with serious problems that require a new approach. I am hopeful the report will be well-received by all three branches of government, and work will soon begin on implementing a Commission structure."
