Monthly Archives: August 2016

Making a Mess: The Indigent Defense Crisis Undermining the Criminal Justice System Throughout Tennessee

By Daniel Horwitz:

This Sunday evening, veteran Wisconsin defense attorneys Dean Strang and Jerry Buting – the trial lawyers who became overnight sensations following the release of the award-winning Netflix documentary “Making a Murderer” – arrived in Nashville to talk criminal justice reform.  The wide-ranging discussion – billed as “A Conversation on Justice” – touched upon several aspects of America’s poorly-functioning criminal justice system from juvenile interrogation to legal ethics.  Most prominently featured, however, was a plea to improve the sorry state of indigent defense in the United States.

“If we are going to keep putting as many people in prison as we do now,” Strang told the sold-out TPAC auditorium, “then we are at least entitled to a reliable determination of guilt.”  (The United States has roughly 5% of the world’s population, but nearly a quarter of the world’s prisoners.)  Buting concurred.  Compensated at just $40 per hour, “Wisconsin’s appointed criminal defense attorneys are the lowest-paid lawyers in the entire country,” he claimed.  For context, Strang added that “it costs me eighty dollars per hour to keep my law firm’s lights on.”

As moderator Stacey Barchenger – who covers the courts and criminal justice beat for The Tennessean – intimated in response, the state of indigent defense in Tennessee is not much better.  In fact, for several reasons, it’s considerably worse.  And the consequences for society – wrongful convictions and a two-track justice system for the rich and poor – are deplorable.

As any casual observer of American crime drama knows, (almost) everyone in the United States who is accused of committing a crime has the right to an attorney.[1]  Additionally, if a person cannot afford an attorney (and more than 80% of defendants fall into this category), then an attorney will be provided at taxpayer expense.  Whether a defendant receives a public defender (a lawyer who is employed full time by the government to represent poor defendants) or an appointed attorney (who is typically, but not always, a solo practitioner) depends on a variety of factors including geography, prior criminal history, and whether there is more than one defendant involved in a particular case.  Although different in several important ways, the pressures facing public defenders and appointed counsel due to inadequate funding – as well as the consequences of those pressures on poor defendants – frequently overlap.

The right to counsel in state criminal cases – guaranteed by the Sixth Amendment to the United States Constitution and incorporated against the states via the Fourteenth – traces back to the Supreme Court’s landmark 1963 decision in Gideon v. Wainright.[2]  Subsequently, the Supreme Court further established that the right to counsel was not merely intended to provide criminal defendants with the euphemistic “warm body with a law degree.”   Instead, the Sixth Amendment is supposed to guarantee the accused a right to “the effective assistance” of counsel as well.[3]

“In practice,” however, “for a variety of reasons, the impact of Gideon has never come anywhere close to reaching its aspirational goals.”  See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harvard Latino L. Rev. __, n. 41 (forthcoming 2016), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757799.  Although multifaceted, the main reason why the right to competent counsel has remained so illusory for indigent defendants more than fifty years after Gideon is simple: the American public just isn’t willing to pay for it.  Dollar for dollar, taxpayers would prefer to spend their money on virtually anything in the world before paying for free attorneys for poor people who have been accused of committing crimes.  Accordingly, the funding that has been appropriated for indigent defense has never even approached the amount that is actually necessary to afford poor people a meaningful opportunity to defend themselves.

The solutions to this problem, however, are somewhat more complex.  Given the profound unpopularity of criminal defendants – and given that poor people cannot afford to hire lobbyists and generally do not have a receptive audience in most (if any) state legislatures – adequate funding for indigent defense is never likely to come voluntarily.  Instead, courts must embrace their role as enforcers of constitutional rights and either order legislatures to appropriate sufficient funding for indigent defense or refuse to allow prosecutions to go forward until such funding has been provided.  Public Defenders – many of whom handle hundreds of cases at a time – must also begin pushing back against courts that tolerate inadequate funding by refusing to take on caseloads that exceed ethical standards.  And when both legislatures and courts fail to meet their obligations, advocates need to sue them.  Frustratingly, although reformers do achieve the occasional victory in this regard, successes are usually short-lived, and they are always a long time coming.

For its part, though, Tennessee’s nearly wholesale abdication of its responsibility to ensure that poor defendants receive effective representation provides a fantastic case study on how to run an indigent defense system in a way that virtually guarantees it will fail.  Although funded by the General Assembly, the compensation rate for appointed counsel in Tennessee is set by the Tennessee Supreme Court.  Specifically, Tennessee Supreme Court Rule 13 provides that “[t]he hourly rate for appointed counsel in non-capital cases shall not exceed forty dollars ($40) per hour for time reasonably spent in trial preparation and fifty dollars ($50) per hour for time reasonably spent in court.”  This rate has also been unchanged since 1994, meaning that appointed lawyers for poor defendants are typically the lowest paid professionals in the courtroom.  (In contrast, Tennessee’s judges are paid rather handsomely; based on a just-published survey of judicial salaries conducted by the National Center on State Courts, salaries of Tennessee Supreme Court Justices currently rank twelfth-best in the nation, while salaries for judges who sit on lower appellate courts and in trial courts rank ninth.)

There are several obvious problems with Tennessee’s appointed counsel compensation arrangement that are worth highlighting.

First, there is no justifiable basis for compensating “time reasonably spent in trial preparation” less than “time reasonably spent in court.”[4]  Trial preparation – including meeting with defendants, interviewing witnesses, preparing pre-trial motions, conducting legal research, investigating mitigating circumstances, filing discovery requests, and any number of other activities that are essential to effective trial advocacy – are every bit as important as time physically spent in court.[5]  Longstanding U.S. Supreme Court precedent also supports this reality.  As far back as 1932, for example, the Supreme Court observed that a criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him” – not merely at trial – and that “[w]ithout it, though he be not guilty, [a defendant] faces the danger of conviction because he does not know how to establish his innocence.”[6]

Even so, Tennessee remains one of six states in the United States to pay a reduced hourly rate for trial preparation.[7]  And because lawyers respond to financial incentives much like other humans, that disparity creates an economic incentive to maximize time spent in court and minimize time spent out of court.  For example, when New York’s disparate compensation scheme – $40 per hour for in-court work and $25 per hour for out-of-court work – was struck down as unconstitutional back in 2003, the reviewing court did so in part on the basis that “[t]he lower rate paid for out-of-court time, in particular, operates as a substantial disincentive to perform” many of the pre-trial tasks that are essential to a defendant’s representation.[8]

A second problem is that Tennessee’s appointed counsel compensation rate – a maximum of $50 per hour – is far too low.  To the minimum wage worker or the service employee making just a fraction of that per hour, that assertion likely strikes a nerve.  But factoring in the fact that the “rate of compensation does not take into account the various overhead costs associated with the practice of law, which include the costs of reference materials, office equipment, rent, travel, malpractice insurance and, for most young attorneys, student loans” – not to mention payroll expenses for office staff – the picture becomes a great deal less rosy.[9]  For example, a 2008 survey found that the average annual overhead cost of running a small law firm was $160,000 per lawyer, which roughly translates to overhead expenses of $80 per hour assuming 2,000 billed hours per year.[10]  Accordingly, as Strang himself lamented: “I’m subsidizing the State of Wisconsin’s prosecution of my own clients to the tune of forty dollars an hour every time I take an appointed case.”

Compared with private counsel – whose standard hourly rates (summarized here by the Laffey Matrix) are often 10 to 20 times higher than Tennessee’s appointed compensation rates – this disparity becomes especially pronounced.  But even confined to the universe of appointed criminal defense work, Tennessee’s compensation rate lags substantially behind other jurisdictions.  For example, Alabama pays its appointed criminal defense attorneys $70 per hour.  Arkansas pays them $50-$90 per hour.  South Dakota musters $84.  And compensation rates for non-capital federal cases – which are funded separately by the Federal Criminal Justice Act – currently stand at $129 per hour.  In fact, on a national scale, Tennessee’s appointed attorneys are arguably paid the second-lowest effective rate in the entire country.[11]  Add in the fact that non-attorney staff members in the Administrative Office of the Courts occasionally deduct appointed attorneys’ bills on the basis that they spent too long on a given task, it’s no wonder that Tennessee’s appointed compensation scheme is held in such universal disregard by those involved in it.

Third, and most egregiously, Tennessee’s compensation rates are capped at set maximums.  With few exceptions, attorney compensation is limited to $1,000 for misdemeanors and $1,500 for felonies.  The result of such caps is that after attorneys have spent approximately twenty to thirty hours on a given case, they immediately begin losing money.  Thus, if an attorney is to make a decent living taking appointed cases, then the only feasible way to do so is to maximize the number of cases cleared before a case’s compensation limit has been reached—a strategy that is not-so-fondly referred to as “meet ‘em and plead ‘em.”  It also goes without saying that given the seriousness and complexity of criminal cases – not to mention the severity of their potential consequences – many clients’ cases cannot reasonably be concluded in thirty hours.  Especially under circumstances when a client is innocent and wants to go to trial, criminal cases can and often do take years to complete.

Predictably, this capped compensation arrangement can introduce deeply troubling and profoundly perverse incentives into an indigent defendant’s representation.  By placing enormous financial pressure on attorneys to conclude cases immediately once they have reached the maximum compensation limit (usually via a plea bargain), the caps create a serious conflict of interest between attorneys and their clients that probably violates Rule of Professional Responsibility 1.7(2) (“a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer.”).  As a consequence, indigent defendants all-too-often do not get the zealous advocacy and effective representation to which they are supposed to be constitutionally entitled.

The results of such idiosyncrasies – (1) disparate pay between in-court and out-of-court work; (2) low compensation rates; and (3) per-case caps on compensation – are measurably terrible for criminal defendants.  The rate of wrongful convictions even in death penalty cases is conservatively estimated to be about 4.1%.  This estimate is even more horrifying given that multiple exceptions (such as higher compensation rates, lifted compensation caps, and dual appointments of attorneys who are required to have significant trial experience) are routinely permitted when the death penalty is at stake.  Accordingly, one might reasonably expect that the wrongful conviction rate for less serious criminal cases is significantly higher.

On a broad scale, extensive evidence also indicates that “those with publicly funded counsel are [both] more likely to be convicted than those with privately paid attorneys” and more likely to receive longer sentences.[12]  Clients represented by salaried public defenders (who – although similarly underfunded – at least have “steady salaries, financial and institutional independence”) also enjoy measurably better outcomes than clients represented by appointed attorneys, who regularly experience the perverse incentives described above.[13]  Accordingly, like the rest of the country, Tennessee boasts a two-track justice system that is definitely not based exclusively on determining guilt versus innocence.  Instead, it has one justice system for the rich, and another for the poor.

Happily (potentially), the Tennessee Supreme Court has recently launched an Indigent Representation Task Force with the supposed goal of fixing these problems.  It is not clear, however, what this task force expects to discover.  When the results are ultimately announced, nobody will be surprised to learn that Tennessee’s decision to fund indigent defense at very nearly the lowest rate in the nation results in terrible outcomes for poor people.  Even if the task force decides to recommend changes to Tennessee’s compensation system, the recommendations are most likely to track those that were previously advanced by the Tennessee Bar Association and other interested organizations back in 2004.  The notion that any of the problems being considered during the Task Force’s “listening tour” are new or unknown, however, is farcical.  The topic of indigent defense is well understood, and it has been studied extensively both locally and nationally on too many occasions to count.

If Tennessee is serious about fixing its indigent defense system – and for now, there is no real indication that it is – then the solutions are simple but politically unpopular.  At a minimum, Tennessee’s compensation rates need to double, the compensation caps need to be lifted, and the disparity between in-court and out-of-court work needs to be done away with for good.  Public Defenders’ offices also need to be funded at a rate that permits attorneys to keep their caseloads below defined national standards.  Whether any of these reforms will actually be put into effect, however, only time will tell.  Until then, poor defendants in Tennessee will continue to serve as data points in a human trial aimed at determining how to provide the least effective criminal representation possible, and sadly, almost nobody will care.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Contrary to popular belief, everyone accused of a crime does not actually have the right to an attorney.  Instead, the right to counsel attaches only when a defendant is charged with a felony, see Gideon v. Wainwright, 372 U.S. 335 (1963), or when actual incarceration is imposed.  See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (“the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”) (emphasis added).  Thus, accused misdemeanants can and often do go unrepresented, resulting in significant collateral consequences that the justice system has never adequately addressed.

[2] Gideon, 372 U.S. 335.

[3]  Strickland v. Washington, 466 U.S. 668, 687 (1984) (“the proper standard for attorney performance is that of reasonably effective assistance.”).

[4] See generally, John P. Gross, Gideon at 50: A Three-Part Examination of Indigent Defense in America, Part I 12-13, Indigent Defense Counsel of the National Association of Criminal Defense Lawyers (March 2013), https://www.nacdl.org/reports/gideonat50/rationingjustice/.

[5] Id.

[6] Powell v. Alabama, 287 U.S. 45, 69 (1932).

[7] Gross, supra, at 12.

[8] New York Cty. Lawyers’ Ass’n v. State, 763 N.Y.S.2d 397, 407 (Sup. Ct. 2003).

[9] Gross, supra, at 8.

[10] Id. at 16 (citing Altman Weil, Survey of Law Firm Economics: Trend Comparison of Overhead Expenses (2003)).

[11] Wisconsin and Oregon respectively compensate their attorneys at $40 per hour and $45 per hour independent of what work is being performed, but unlike Tennessee, neither state imposes maximum compensation limits, which have the consequence of reducing the effective compensation rate realized.  See Gross, supra, at 29 & 32.  However, attorneys in Cook County, Illinois receive $40 per hour in court and $30 per hour out of court, with maximum compensation caps even lower than Tennessee.  Id. at 22.  Some jurisdictions have flat fee rates or higher hourly rates but lower compensation caps, however, making cross-jurisdictional comparisons somewhat difficult.  Id. at 20-32.

[12] Erwin Chemerinsky, The Case Against the Supreme Court 147 (2014).

[13] James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 Yale L.J. 154, 188 (2012).

Memphis’s 48-Hour Investigative Hold Policy Heads to the Supreme Court

By Daniel Horwitz:

In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy.  The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1]  Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.

Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2]  As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours.  If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it.  If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.

The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures.  In the 1991 case County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional.  Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place.  However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:

First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance.  Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only.  Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed.  Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment.  Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]

This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring.  There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted.  Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).

[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).

[3] The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.

[4] Horwitz, supra, at 522–23 (citations omitted).

Editorial: Senate Republicans’ inaction puts judiciary in crisis

By Daniel Horwitz, via The Tennessean (original link:  http://www.tennessean.com/story/opinion/contributors/2016/08/05/senate-republicans-inaction-puts-judiciary-crisis/88296362/)

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The American judiciary is in crisis. This crisis, however, is not one of competence or capability. Instead, due to unprecedented inaction from the United States Senate, large swaths of the federal judiciary are simply missing — resulting in excessive delays, exploding dockets and inconsistent application of the law in different parts of the country.

At present, more than 10 percent of the federal judiciary is vacant, with the overwhelming majority of such vacancies occurring in federal District Courts. District Courts serve as the judiciary’s workhorses, handling claims like Social Security disability denials and overseeing criminal prosecutions. Astoundingly, however, nearly one-third of federal District Court vacancies are currently designated “judicial emergencies” — a term that is generally defined as a court where filings exceed 600 per judge. Consequently, for anyone who believes that justice delayed is justice denied, the status quo stopped being acceptable many years ago.

The situation is no better at the appellate level. With respect to Court of Appeals nominees, the confirmation process has become so dysfunctional that Senate Republicans are now routinely refusing to confirm qualified nominees whom they themselves proposedto fill vacant positions. The Senate’s failure to fill vacant seats has also put a tremendous strain on sitting judges who must compensate for their missing colleagues — often preventing them from devoting the necessary time and attention to each case that every litigant deserves. Given the judges’ impossibly large caseloads, oral argument is now permitted in fewer than one out of every five cases in many federal circuits — depriving many aggrieved citizens of their cherished day in court.

But nowhere is America’s judicial crisis more apparent than in the U.S. Supreme Court. Having been left without a critical ninth member since February, the Supreme Court has already been unable to resolve myriad split decisions by lower courts — resulting in the same laws carrying different meanings in different parts of the country. Significantly, if the Senate fails to confirm a new justice soon, then the Supreme Court will also be forced to go at least two terms without being able to settle such crucial disputes. The resulting chaos is not only deeply damaging to the rule of law and to the judiciary as an institution — it is also historically unprecedented.

Denying President Barack Obama’s Supreme Court nominee Merrick Garland a Senate confirmation hearing is unparalleled in modern history. Since 1916, with the sole exception of 11 justices who were confirmed by unanimous consent, the Senate has scheduled a confirmation hearing for every single person who has been nominated to fill a Supreme Court vacancy, bar none.

Until now, the Senate also has never failed to do its constitutional duty, either as a matter of partisan obstruction or because a vacancy came up during an election year. In fact, Senate Democrats have confirmed Republican presidents’ Supreme Court nominees 12 separate times in recent history — including permitting conservative lightning rod Clarence Thomas to replace liberal icon Thurgood Marshall in 1991. Additionally, since 1912, six Supreme Court justices have been confirmed during presidential election years, including the 1988 confirmation of Justice Anthony Kennedy under President Reagan.

Moreover, as George H.W. Bush and Jimmy Carter have never forgotten, presidential terms are four years — not eight. Thus, the notion that presidents should simply stop fulfilling their constitutional duties during the final year of their terms — thus wasting a full quarter of an American presidency — is ludicrous.

Ultimately, if Senate Republicans decide that judicial nominees like Merrick Garland are unqualified to hold office for any reason, political or otherwise, then they are within their rights to vote them down. To fail even to hold confirmation hearings for proposed nominees, however, is a flagrant dereliction of duty. Thus, Senate Republicans should rightly be taken to task for refusing to comply with their constitutional obligations. Election year or not, it’s long past time for them to do their job.

Daniel Horwitz is an appellate attorney in Nashville and a member of the American Constitution Society.  Reach him at daniel.a.horwitz@gmail.com.

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