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IN-DEPTH
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CITYVIEWMAG.COM JULY AUGUST 2015
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Gideon’s Promise Broken?
“The average time spent by a public defender at arraignment is often less than six minutes per case ... In some jurisdictions, public defenders may have more than 300 cases at one time.”
$50 per hour for in-court time and $40 per hour for out-of-court time. The average total compensa- tion in a typical case is just barely over $200.
When individual liberty hangs in the balance, a reasonably paid counsel is critical to the concept of open courts and due pro- cess of law. Unfortunately, the General Assembly
Two years ago, Andrew
Cohen, writing for the Atlantic
Monthly, cynically described
how little Gideon matters in
today’s world. Cohen found
“a vast gulf between the broad
promise of the ruling and the
grim practice of legal rep-
resentation for the nation’s
poorest litigants.” According to
a Brennan Center for Justice
publication in 2012, a report
referenced by Cohen, the
average time spent by a public defender at arraignment is often less than six minutes per case, and public defenders in most jurisdictions across the country exceed their recommended workload of 150 felony cases or 400 misdemeanor cases per year. In some jurisdictions, public defenders may have more than 300 cases at one time. Yale Law Professors Stephen Bright and Sia Sanneh have opined that “[t]he representation received by most poor people accused of crimes—if they receive any at all—is a far cry from the constitutional requirement of the ‘guiding hand of counsel at every step in the pro- ceedings.’”7 The “guiding hand” to which the professors refer is language straight from the Gideon opinion.
courts must appoint private counsel. Of course, these attorneys are entitled to
be paid by the state for the value of their services. To describe the level of compen- sation as inadequate, however, qualifies as a classic understatement.
Former Tennessee Bar Association President and Tennessee Valley Author- ity Chair, John Waters, was an excellent attorney in his years in the profession but today serves primarily as the Sevier County repository of wit and wisdom relating to the legal profession. A punch- line in one of his yarns ends this way: “There is nothing colder than the breath of an unpaid lawyer.” That is not exactly true, of course, because our profession
is unique in that we are often obliged
to volunteer our services on a pro bono basis—mostly in civil cases where those in need are simply unable to afford to pay a fee. Nevertheless, the point John makes is also valid as to underpaid lawyers who are appointed in criminal cases.
In 1994, the Tennessee Supreme Court set compensation for appointed counsel at $50 per hour for in-court time and $40 per hour for work outside of the court- room. The General Assembly funded the budget. In that same year, a first-class stamp cost 29 cents, a dozen eggs cost
87 cents, and a McDonald’s hamburger cost 39 cents. Today, a first-class stamp costs 49 cents, a dozen eggs cost $2.40, and a McDonald’s hamburger costs $1.00. Meanwhile, compensation for appointed counsel in criminal cases continues to be
has not seen fit to provide additional funds for indigent defense.
During these hard financial times, our courts have been unable to compensate appointed counsel fairly, a circumstance that I deeply regret. In fairness to our legislative and executive branches, the cost is significant—about $36 million last year counting those attorneys appointed in dependency, neglect, and parental ter- mination cases in the juvenile courts and other related costs, such as for investiga- tors, expert witnesses, and interpreters. While that allocation of funds makes up only about one-tenth of one percent of the state budget, there are other meri- torious demands competing for the tax dollars. Nevertheless, the current rates are simply unfair.
Of course, there is no right to counsel in civil cases. While it is impractical to assure a right to counsel to those involved in civil disputes, such as a claim in general sessions court, there is still an unmet need. Former Chief Justice William M. Barker used as an analogy signs he had seen at a train station in London: “Mind the Gap”—literally meaning to watch out for the open space between the platform and the train. Justice Barker saw the message figuratively—our profession must pay heed to those involved in civil disputes and in need of counsel, but without the funds to pay a fee. More than 20 percent of Tennesseans fall below the federal poverty guidelines. For at least
1.2 million Tennesseans who qualify for
Some 26 years ago, the Tennessee Gen- eral Assembly created a statewide system of public defenders as an alternative to the practice of court-appointed private attorneys. The creation of the office of the public defender was designed to fulfill the state’s obligation under the U.S. Con- stitution to provide a lawyer to persons accused of crimes who cannot afford
a lawyer. District public defenders are attorneys elected in each judicial district who have the obligation to represent indigent persons. In many cases involv- ing indigent defendants, however, the public defender is disqualified because
of the natural conflicts of interest arising in cases involving multiple defendants.
In cases involving potential conflicts, the
7 Stephen B. Bright & Sia M. Sanneh, Fifty Years of Defiance and Resistance after Gideon v. Wainwright, 122 Yale L.J. 2150, 2152-53 (2013).