Tennessee Supreme Court Considers Sponsoring a Race to the Bottom

I've written about the problems with indigent defense before. 

I've talked about  Colorado where elected prosecutor Marty Beeson figures that public defenders are abusing the system because they aren't sufficiently supportive of the his efforts to get their clients convicted.  I've talked about  Georgia where capital prosecutions languish because the state can't pay the lawyers.  About California where death row inmates wait an average of 10-12 years while the state tries to find lawyers willing to represent them.

And of course about Missouri where public defenders have refused to take more cases because they cannot do their job competently with excessive caseloads and insufficient resources. Prosecutors there want to shut down the public defender system and replace it with something that costs less and the hell with competent representation.

Here and there I've found good signs.

There was Eric Holder and the Access to Justice Initiative which was something even though it seems primarily to have involved calls for meetings and discussions and a public pronouncement that 

Something's got to be done.

There was the mess in New York that began to be addressed in Hurrell-Harring v. New York.  And Iowa where the high court actually said that it was unconstitutional to put an arbitrary cap in the fees that appointed appellate counsel could earn.

Now we turn to Tennessee where, as Brandon Gee writes in the Tennessean, the Tennessee Supreme Court is considering a switch from underfunded public defense offices to providing indigent defense by "a highway contract-style bidding process."

To rein in the state’s fast-growing indigent defense fund, the court has drafted an amendment to its rules that would allow the cash-strapped state Administrative Office of the Courts to solicit bids and award contracts to lawyers or firms “to provide legal services to indigent persons for a fixed fee.”

Oh, they're not cold-hearted about it.  The court figures that there are only some kinds of cases where screwing the indigent accused with low-bid defense is appropriate.

“With the economy the way it is, we’re just trying to be good stewards of taxpayer dollars,” said Laura Click, spokeswoman for the state courts.
Click said the Supreme Court intends to use contracts only for two types of relatively straightforward cases: contempt proceedings resulting from the non-payment of child support and hearings on whether a person should be involuntarily committed to a mental health institution.
“There are situations where it does and doesn’t make sense,” Click said. “We recognize that. The idea is that when it does make sense, we’d like to put it in place to streamline the process.”

Gail Kerr in the Tennessean gets to the heart of what's wrong with this.

It’s the idea of paying a flat fee per case that makes this so distasteful. What that means is the ambulance-chasing-type lawyers could load up their plate with low-bid cases, collect their payment, and do as little work as possible for their client. Heck, they’re going to get paid the exact same amount if the client cops a plea or goes all the way to a jury trial and through the appeals process. There would be no incentive, other than a strong moral compass, to offer a client the strongest defense possible.

And despite the court's announced intention to limit the categories of indigents the court believes don't deserve adequate, conflict-free defense, the rules the court proposed don't do that.  Gee again:

The language of the proposal, however, is not limited to these types of cases, and many lawyers fear the rule change would open the door to additional cases being awarded to contract attorneys — and preclude other lawyers from pursuing the court-appointed work that is the cornerstone of many practices.

Sadly, this sort of idea isn't unique to Tennessee.  Indigent defense is routinely a poor stepchild.  If criminal defendants generally have no good lobby, impoverished criminal defendants fare even worse.  All they have is the Sixth Amendment.  Even when times are good, that's rarely much.  When times are tough, it's less.

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One solution, of course, would be for lawyers to decline participation in the sorts of bidding wars that the Tennessee supremes are considering.  After all, we have a duty to represent the clients zealously within the bounds of the law, and that requires time and effort and a commitment to do what the case requires rather than what the low bid permits.  We are, as Scott Greenfield and Brian Tannebaum and Mark Bennett and others regularly and eloquently remind us, a profession.  We have an obligation to refuse the race to the bottom.

Don't hold your breath.

Here's the first substantive paragraph of Kerr's column.

The truth is, members of the bar are a mostly impressive, ethical bunch. But, as in journalism or any field, there’s always a basement layer. There are lawyers who run icky ads to draw clients with few resources and high hopes. Unfortunately, these are the type of attorneys who would jump on a proposal to sell some criminal defendants to the lowest bidder.

See that word lawyers in the third sentence?  In the on-line version of the column, it's a hyperlink (no, I'm not reproducing it here) to Lawyers.com where you can find lawyers hawking themselves like carnival barkers.  (Yes, there are far more offensive services; it doesn't matter; I'm making a point here, not specifically attacking Lawyers.com.)

Kerr, of course, isn't responsible for the hyperlink.  That's a bit of paid advertising.  In context, though, the irony is telling.

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Justice Brennan, dissenting alas, in McCleskey v. Kemp reminded the Court (a majority of which chose to ignore him) and the public (which mostly has no idea what he wrote) why effecting those rights should matter in words that ought to be prominently tattooed into the DNA of all our legislators and executives and judges.  Members of the bar, too.

Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life.