The Tennessean
Op-Ed
By Bill Redick
April 24, 2006 --Tennessee faces a crisis which undermines the right of our citizens to have equal access to effective legal representation if they cannot afford counsel. Critically, the overwhelming majority of criminal defendants in Tennessee are indigent and must rely on the state to provide them with legal counsel. The Tennessee Supreme Court is charged with the responsibility to supervise the judicial system and to ensure that all citizens are treated equally under the law.
On Aug. 31, 2006 Tennessee Supreme Court Justices A. A. Birch and Riley Anderson will retire, opening up two vacancies on the court. Gov. Phil Bredesen will appoint their replacements from among candidates recommended by Tennessee Judicial Selection Commission. With two new members on a five-member court, the composition of the court will change significantly, making these appointments extremely important to our state. We should be concerned about these appointments.
Equal justice under the law is a cornerstone of our democracy, reflected in the Declaration of Independence, the United States Constitution and the Tennessee Constitution; it is the American ideal. It is, however, not a reality in Tennessee. While there are exceptions, as a general rule the quality of legal representation provided by state-appointed counsel for indigent defendants is demonstrably inferior to that provided by counsel hired by those who can select and afford to pay for their own lawyer
The public defenders in Tennessee are burdened with some of the highest caseloads in the country and are paid a starting salary that is not much more than half that paid to new lawyers in private practice, according to an editorial published in The Tennessean Feb. 2. According to a "weighted caseload study" published this year by the state Comptroller's Office, the state public defender offices are understaffed by 120 lawyers.
With the advent of the public defender offices in this state, private attorneys have increasingly been excluded from the appointment process. When private attorneys are appointed in criminal cases, however, they are paid only $40 to $50 per hour in non-capital cases, which may not be enough to pay the overhead costs of maintaining a law office and only $60 to $100 per hour in death penalty cases. While underpaid indigent criminal defense lawyers represent citizens whose life and liberty are at stake, the state hires lawyers to represent its property interests at the normal rate of up to $225 per hour but sometimes as much as $350 per hour. The provision of necessary extra-legal services for indigent defendants, such as investigators and forensic experts, is often inadequate, particularly in cases involving the more serious offenses.
Tragically, the most serious deficiencies in defense representation occur in cases in which human life is at stake. The American Bar Association sets clear and universally accepted standards for effective legal representation in death penalty cases. A study of the indigent defense system in Tennessee, published in 1992, found that Tennessee "falls short of virtually every standard," and a report from the Tennessee Bar Association, published in 2004, found that Tennessee is "woefully out of step" with the existing American Bar Association standards.
A few years ago, the Tennessee Supreme Court implemented "qualification" standards for death penalty defense counsel. But these standards have resulted in a roster of attorneys eligible for appointment that excludes qualified attorneys and includes unqualified attorneys, some of whom have been suspended or censured by the Board of Professional Responsibility or convicted of crimes.
All of this means that the outcome of death penalty trials cannot be trusted. We run the risk of executing defendants, not because they are the worst offenders, but because they have the worst lawyers. These representation problems are part of the reason that litigation seemingly goes on forever in death penalty cases.
In the past, the courts often appointed the best available counsel to represent death penalty defendants. Unfortunately, the courts now increasingly tend toward the automatic appointment of the understaffed, underpaid local public defender who may or may not have the resources necessary to provide effective representation.
Tennessee needs two new Supreme Court Justices who are willing and able to address this crisis and protect our rights to equal justice under the law.
Bill Redick is the Director of the The Justice Project's Tennessee Campaign.
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This letter was reprinted with the permission of the author and appeared in The Tennessean.
