Tennessee Supreme Court supports indigent defense changes. Part 2

Two months ago, I wrote about the Tennessee Indigent Representation Task Force’s 204-page report that recommended changes to indigent defense in Tennessee.  This month, the Tennessee Supreme Court backed some of the recommendations in the report.  Specifically, the Court is supporting legislative changes that would raise the hourly compensation rate of appointed attorneys from $40/hr out of court and $50/hr in court to $65/hr.  The Court is also asking to raise the caps on felonies by $500 and juvenile matters by $250.

Further, the Court seeks to offset some of the additional costs by creating an appellate division of the public defenders’ offices and a conflicts division to handle cases that the public defenders conflict out of.  A proposed statewide commission would oversee these divisions and indigent representation in general.  Another way the Court seeks to offset the cost is through the modification of indigency forms.  These modifications would require judges to explain and certify the existence of a conflict before appointing private counsel.

Finally, the Court will implement periodic billing to address the problem of waiting long periods of time (sometimes years) to bill out a case.

My take on these proposed changes:

$65/hr is more than fair.  Honestly, $40/hr is fine.  The biggest issue at the moment is the case caps are not “calibrated” correctly for the number of hours a case takes.  For example, a misdemeanor general sessions case has a cap of $1,000.  Rarely, will anyone ever need to even come close to the cap.  On the other hand, a termination of parental rights is $1,000, even though this all but guarantees a full blown trial.  In my opinion, an attorney should go over the cap in most termination of parental rights cases.

My other issue with these changes is that they encourage attorneys to work fewer hours.  For example, a $1,500 felony at $40/hr takes 37.5 hours to cap out.  After these proposed changes, a $2,000 felony at $65/hr would only take 30.7 hours to cap out.  This just provides stronger incentive for attorneys to plea cases out.

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