Nashville, Tenn. – February 8, 2017 — State Senator Steve Dickerson, R-Nashville, and State Representative Sam Whitson, R-Franklin, introduced legislation today that would allow Tennesseans to purchase cosmetology services in the privacy of their own homes.
The reform comes after The Tennessee Board of Cosmetology and Barber Examiners filed a complaint last year against Belle, a popular Nashville-based technology company that provides on-demand health and beauty services. The Board initially alleged that Belle was violating the state’s cosmetology laws, but withdrew its complaint after Belle formally contested the Board’s allegations. The Board’s decision to withdraw its complaint was covered widely in local, state and national media including Forbes, Yahoo, Reason, the Nashville Business Journal and the Memphis Commercial Appeal, among others.
“As we move forward into the 21st century, we must update state rules and regulations to reflect the realities of the 21st century economy,” said Senator Dickerson. “This bill will remove barriers that are denying Tennesseans the opportunity to develop and grow in their chosen profession. By removing these impediments, we allow the entrepreneurial spirit of Tennesseans to flourish, increase freedom and enhance choice for our state’s consumers.”
“The regulatory structure of our state must be thoughtfully crafted in such a manner as to allow for constant innovation and facilitate consistent growth in the new economy,” added State Representative John Ray Clemmons, D-Nashville, an early supporter of the reform. “Tennessee must strive to attract entrepreneurial talent and new jobs.”
“Last fall, the Tennessee Board of Cosmetology unlawfully attempted to shut down one of Nashville’s most exciting new tech companies for the sole purpose of protecting an out-of-date industry competitor from competition,” said Daniel Horwitz, Belle’s attorney. “This bill ensures that the Board will be prevented from engaging in such lawless behavior ever again.”
“The repeal of these outdated regulations means beauty professionals can freelance in a way that they see fit, and whether that’s with us or by themselves, I believe everyone has that right,” said Armand Lauzon, CEO of Belle. “This new legislation paves the way for further innovations and economic growth in Tennessee, and perhaps most importantly, it will allow consumers to have the right to make the choices they deserve.”
In March 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (TPRA) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by The Tennessean against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain.
The Tennessee Supreme Court has agreed to hear a laughably egregious case of economic protectionism in its upcoming term. The case pits Vanderbilt Law School alumnus Maximiliano Gluzman – a preeminently qualified lawyer who graduated Vanderbilt’s LL.M. program with an almost impossible 3.919 GPA – against the Tennessee Board of Law Examiners, which has refused to allow Mr. Gluzman to take the Tennessee bar exam solely because he’s foreign.
Given the extraordinary facts of Mr. Gluzman’s case, the Board will struggle to mount a straight-faced claim that its decision to deny Mr. Gluzman the opportunity to take the Tennessee bar exam is based on anything other than its interest in protecting Tennessee’s native-born attorneys from competition—a result that benefits lawyers but harms consumers by artificially raising prices. As a consequence, the case has the potential to extend Tennessee’s already-robust precedent on economic liberty to an industry that it has never reached before: legal services.
In 2002, the United States Court of Appeals for the Sixth Circuit – which has jurisdiction over Tennessee – established ground-breaking federal precedent by holding that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1] Significantly, though, the Tennessee Supreme Court boasts an even prouder history of protecting economic liberty under the comparable provisions of Tennessee’s state Constitution. For example, in the 1956 case Consumers Gasoline Stations v. City of Pulaski, the Tennessee Supreme Court held that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2] Additionally, more than half a century before that, the Tennessee Supreme Court held in Harbison v. Knoxville Iron Co. that:
“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.”[3]
Of note, the Tennessee General Assembly has since expanded these precedents even further as a legislative matter by enacting the “Right to Earn a Living Act” in 2016,[4] which recognized that: “it is in the public interest to ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition” without unnecessary governmental interference.
Ostensibly, bar admission rules are intended to protect the public from unqualified attorneys. Historically, however, they’ve often been wielded to keep disfavored minorities—like Jews and women—from becoming lawyers instead.[5] Barriers imposed between states themselves have also been used more often than not to “insulat[e] [in-state] practitioners from out-of-state competition,”[6] rather than being adopted for the purpose of promoting any actual public interest. Such is the case with respect to Mr. Gluzman as well—a fact that the Tennessee Supreme Court is highly unlikely to overlook.
In Mr. Gluzman’s case, there can be no serious claim that he would pose even the slightest threat to the public if he were permitted to take the Tennessee bar exam. In fact, during Mr. Gluzman’s hearing before the Board of Law Examiners, the Board itself conceded that Mr. Gluzman was “obviously a very, very qualified person.” His extraordinary academic credentials also support this conclusion in full. For example, while competing against Vanderbilt’s American JD students (in his second language, no less), Mr. Gluzman was able to graduate with an eye-popping 3.919 GPA—good enough to put him at the top of Vanderbilt’s Dean’s List each semester and quite possibly making him the most academically-qualified foreign applicant ever to apply to take the bar exam in Tennessee. Two of Mr. Gluzman’s Vanderbilt Law School professors also provided expert testimony in support of his application to take the bar exam, with one observing that Mr. Gluzman was “one of the very best students I ever had the privilege of teaching in 20 years,” and the other testifying that he was “clearly top of the class.” Mr. Gluzman’s application to take the Tennessee bar exam also comes after more than a decade of professional success as a corporate lawyer in Argentina.
Despite this sterling record of achievement, however, the Board of Law Examiners denied Mr. Gluzman not only the opportunity to become a lawyer in Tennessee—it told him that he may never even take the Tennessee bar exam. The purported basis for the Board’s denial was that Mr. Gluzman’s undergraduate and legal education were not “substantially equivalent” to an American education: a conclusion that itself conflicts with an expert foreign credential evaluation report filed in his case that unequivocally concluded otherwise. According to the Board, though, a foreign applicant like Mr. Gluzman must have earned “a degree that is equivalent to a Bachelor’s degree or higher followed by a degree that is equivalent to a Juris Doctorate degree,” which he did not.
Conveniently, because the vast majority of countries around the world combine undergraduate and legal educations into just a single degree over the course of a five- or six-year period, one expert witness testified that only “[foreign] students from nine Canadian provinces, a few Australian students, and a few Japanese students” may ever hope to win permission take the Tennessee bar exam under the Board’s current standard. Attorneys from anywhere else in the world, however, are forever prohibited from becoming lawyers in Tennessee unless they opt to re-do their entire undergraduate and legal education in the United States. Obviously, no foreign applicant is willing to forfeit the time (seven years) and money (hundreds of thousands of dollars at a minimum, factoring in opportunity costs) necessary to satisfy that requirement. Instead, the only rational decision is to move to states like Texas, which makes an effort to accommodate foreign attorneys rather than placing insurmountable barriers in front of them for the purpose of curbing competition.
Exacerbating this groundless discrimination, LL.M. Degrees – which many states permit to “cure” any claim of insufficient foreign credentials – from law schools like Vanderbilt and the University of Tennessee are now disregarded as useless by the Tennessee Board of Law Examiners if an attorney does not hail from one of the three aforementioned countries with law schools that match American JD programs. Thus, if permitted to stand, the Board’s decision would significantly undermine the integrity of the LL.M. programs offered by Tennessee’s two flagship law schools. Fearing lasting and devastating consequences from the Board’s grievous error, the Board’s decision immediately prompted Vanderbilt University and UT to file a joint petition in support of Mr. Gluzman highlighting the seriousness of the problem that the Board had created. Even then, however, the Board opted to ignore it.
In addition to disregarding Mr. Gluzman’s surpassing personal qualifications, the reality that the Board of Law Examiners is not actually focused on protecting the public from unqualified lawyers is revealed by the fact that it has taken no apparent interest in the declining bar passage rates posted by Nashville School of Law in recent years. The last time the bar exam was administered in Tennessee, for example, fully 72% of Nashville School of Law graduates failed it—a fact that did not visibly cause the Board of Law Examiners even the slightest concern. Now, however, an indisputably qualified Vanderbilt Law School graduate wants to sit for the bar exam, but because he’s foreign, the Board won’t even let him take it? Plainly, the Board’s motives have little and less to do with protecting the public from unqualified lawyers, and a great deal more to do with protecting American attorneys from foreign competition. Whether the Board’s decision – and all of its attendant consequences – will be permitted to stand, however, only time will tell.
Gluzman v. Tennessee Board of Law Examiners is expected to be heard in the Spring or Summer of 2017. Read Mr. Gluzman’s brief before the Tennessee Board of Law Examiners here.
[5]See Deborah Rhode, Moral Character As A Professional Credential, 94 Yale L.J. 491, 497-502 (1985) (noting that State bars historically have excluded women, Jews, those of Eastern European decent, religious fanatics, Communists, and adulterers, among others, because these allegedly socially unacceptable or radical political behaviors were said to have demonstrated a propensity to violate professional norms).
[6]Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985).
The United States Supreme Court has agreed to hear a Sixth Amendment case out of Tennessee in its March 2017 sitting. The case – Jae Lee v. United States[1] – focuses on the Sixth Amendment’s guarantee of effective assistance of counsel when plea bargains trigger deportation consequences. Specifically, Jae Lee will determine whether a defendant who would likely have been convicted if he had proceeded to trial is prejudiced by ineffective counsel when he accepts a guilty plea on the basis of erroneous legal advice that he will not be deported.
The facts of Jae Lee are not in dispute. In 1982, Mr. Lee legally immigrated to the United States from South Korea. Thereafter, Mr. Lee completed high school and moved to Memphis with his family, where he became a successful restaurateur. As the Sixth Circuit noted, however, Mr. Lee “also became a small-time drug dealer,” and in 2009, he “was charged with possession of ecstasy with intent to distribute” in violation of federal drug laws. If convicted, Mr. Lee would immediately become deportable. Unfortunately for Mr. Lee and his family, the case against him was also very strong.
After being indicted, Mr. Lee’s criminal defense attorney advised him to plead guilty in exchange for a lighter sentence. Mr. Lee’s attorney also advised him that if he accepted a guilty plea, he would not be deported. On the basis of that advice, Mr. Lee decided to plead guilty.
Unfortunately for Mr. Lee, the advice that he received from his attorney turned out to be spectacularly wrong. Notwithstanding his attorney’s advice to the contrary, Mr. Lee’s guilty plea actually did render him deportable, and he was immediately subjected to removal proceedings as a result. Had he avoided a criminal conviction or been convicted of a different offense, however, Mr. Lee would have been permitted to remain in the country.
Understandably upset that he had pleaded guilty based on legal advice that turned out to be completely incorrect, Mr. Lee sought to withdraw his guilty plea on the basis that he had received the ineffective assistance counsel. Under the standard for ineffective assistance of counsel established in Strickland v. Washington,[2] a defendant must satisfy two separate requirements in order to prevail. First, a defendant must demonstrate that his attorney’s performance was “deficient” in that it fell below prevailing professional norms. Second, the defendant must demonstrate that he suffered legal “prejudice” as a consequence of his counsel’s deficient performance. Both requirements must be met in order to win a claim of ineffective assistance of counsel, which – if successful – would have allowed Mr. Lee to withdraw his guilty plea and proceed to trial instead.
Because the government conceded that Mr. Lee’s attorney had rendered deficient counsel by misadvising him about the deportation consequences of accepting a guilty plea, the only question remaining was whether Mr. Lee was legally “prejudiced” by his attorney’s erroneous advice. Typically, a defendant challenging a conviction on the basis of ineffective assistance of counsel must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[3] Importantly, however, when it comes to plea bargaining, the test for prejudice is slightly more favorable to defendants. Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[4] As this author explains in his 2016 Harvard Latino Law Review article on this subject, however, following the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky,[5] immigration-related pleas have a different standard still. Specifically:
“In the context of deficient immigration counsel, [] the test is whether ‘a decision to reject the plea bargain would have been rational under the circumstances.’ It is not yet clear whether, or to what extent, there is a substantive difference between these standards, and indeed, the Government occasionally ‘wobbles between the two standards for allowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat.’ What is clear, however, is that the test for prejudice under Padilla is not whether a defendant would have been deported anyway. Instead, it is whether the defendant would rationally have rejected the offered plea bargain and either proceeded to trial or negotiated an alternative plea bargain if the defendant had received the competent immigration counsel to which all immigrants are constitutionally entitled.”[6]
The federal Circuits are deeply divided on whether it can ever be “rational” for an obviously guilty defendant to reject a plea bargain and instead attempt to “throw a Hail Mary” at trial in the hopes of avoiding near-certain deportation consequences.[7] After acknowledging this split of authority, the Sixth Circuit reaffirmed its prior holding in Pilla v. United States that “no rational defendant charged with a deportable offense and facing ‘overwhelming evidence’ of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.” Accordingly, the Sixth Circuit denied Mr. Lee an opportunity to withdraw his guilty plea, and the Supreme Court granted review.
The problem with the Sixth Circuit’s (and several other Circuits’) take on this issue, however, is that it misapplies the standard for prejudice under Padilla and also violates the bedrock constitutional requirement that a guilty plea must be entered voluntarily. As Judge Posner of the Seventh Circuit wrote in a similar case, for example, “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances,” and “a criminal defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.”[8] Additionally, as this author explains in his Harvard Latino Law Review article referenced above, “several commentators have recognized the reality that in most instances, non-citizen defendants are likely to view deportation as a far more serious punishment than a conviction that results in incarceration.” Thus:
By any metric, a defendant who accepts a guilty plea as a consequence of [] affirmative misadvice [that he will not be deported]—only to learn later on that he is to be deported anyway—has suffered serious prejudice in the form of a criminal conviction due to his counsel’s incompetence.
This sort of bait-and-switch—which, incidentally, occurred in Padilla itself—represents a classic case of ineffective assistance of counsel. Indeed, on this point, even the two concurring Justices in Padilla enthusiastically agreed. As Justice Alito explained:
when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable[,] . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights [at all].
Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 19 (2016).
Consequently, given that fully seven of the Supreme Court’s eight current Justices have held that a defendant cannot be denied the opportunity to withdraw a guilty plea under these circumstances, it seems likely that Mr. Lee – and his excellent Tennessee attorney Patrick McNally – will ultimately prevail.
[6] Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15 (2016) (citations omitted).
[7]ComparePilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012); Haddad v. United States, 486 Fed. Appx. 517, 521–22 (6th Cir. 2012); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); and United States v. Kayode, 777 F.3d 719, 724–29 (5th Cir. 2014), with United States v. Orocio, 645 F.3d 630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v. Rodriguez–Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015).
[8]DeBartolo v. United States, 790 F.3d 775, 778-89 (7th Cir. 2015).
Across the world, whether people who have been accused of committing crimes should have the right to an attorney is something of a disputed question. Certainly, North Korean “Supreme Leader” Kim Jong-un, Turkish dictator Recep Erdogan, and any number of other modern fascists hold strong views on the matter. In America, however, the answer to this question has long been settled by the Sixth Amendment to the United States Constitution, which declares with unmistakable clarity that: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.”
Demonstrating his laudable commitment to participating in the political process and encouraging others to do so as well, international music sensation and Memphis-bred popstar Justin Timberlake recently posted an instragram photo of himself rocking the (early) vote at his polling place in Memphis, Tennessee. That terrible offense, unfortunately, has earned him a rebuke from the Shelby County District Attorney’s office, which is currently conducting a criminal investigation into his scandalous conduct. The reason? Tennessee’s poorly-worded “Use of Mobile Electronic and Communication Devices at Polling Place for Informational Purposes” statute, codified at Tenn. Code Ann. § 2-7-142(b), which provides that:
“Any voter using a mobile electronic or communication device . . . shall be prohibited from using the device for telephone conversations, recording, or taking photographs or videos while inside the polling place.”
Violating this provision is theoretically a Class C misdemeanor punishable by up to 30 days in jail and a $50.00 fine. The law, however, is unconstitutional.
The practice of taking “ballot selfies” – photographs of one’s ballot that may or may not also include the voter – has become increasingly popular among voters in recent years. Celebrities from Beyoncé to Sean Hannity to Kim Kardashian have also gotten in on the action. Unfortunately, however, the celebratory practice of posting ballot selfies – which should be welcomed and perhaps even encouraged in a political climate in which many voters, especially young voters, never vote at all – has also drawn the attention of overzealous state regulators. During the November 2014 election, for instance, “approximately 35 states prohibited ballot selfies in one form or another,” and several states – Tennessee among them – “have since followed suit.”
Three main reasons, detailed extensively in this article, support the conclusion that ballot selfies may not lawfully be prohibited without violating the First Amendment.
First, ballot selfie bans unnecessarily restrict a substantial amount of constitutionally protected speech (like Mr. Timberlake’s) that is completely unrelated to vote buying, while simultaneously doing nothing to prevent far simpler forms of vote buying, such as absentee ballot fraud (which can be accomplished outside of the comparatively well-surveilled atmosphere of a polling place).
Second, the “compelling” nature of the Government’s interest in enacting broad-based laws to guard against vote buying is subject to considerable doubt, because vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish.
Third, and most importantly, because voters have the ability to change their vote even after taking a ballot selfie, ballot selfies are a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless. That reality is exposed, for example, by this set of pictures (click on the photo to enhance it) that the author took during the 2015 Nashville mayoral election, which collectively illustrate just how easy it is to change one’s vote after making an initial selection:
In other words, because ballot selfies do not provide a prospective vote-buyer any level of certainty that a ballot has actually been cast in a particular way (an absolute prerequisite to any effective vote-buying scheme), ballot selfies are a useless tool for committing fraud, and banning them serves to do nothing but interfere with the political speech of innocent voters who want to do nothing more than celebrate the fact that they voted.
In sum: Justin Timberlake should be applauded for his activism and his decision to celebrate the right to vote, which is fully protected by the First Amendment. As such, today – like most days – JT’s an American hero.
Update, 5:07 PM: To the surprise of nobody, Justin Timberlake’s prosecution for violating Tennessee’s ballot selfie ban won’t go forward.
Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.
“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.
Nashville, Tennessee—The Tennessee Board of Cosmetology and Barber Examiners has officially withdrawn its threatened enforcement action against on-demand beauty services provider Project Belle, greenlighting the company’s business practices and enabling its continued growth throughout the State of Tennessee. The Board’s decision to back down comes after intense media coverage from local, state and national media outlets including Forbes, Yahoo, Reason, the Nashville Business Journal, the Beacon Center of Tennessee, and the Memphis Commercial Appeal.
The Board had claimed that the Tennessee Cosmetology Act of 1986 prohibited Belle from facilitating the purchase of beauty services in the privacy of a customer’s home. Accordingly, the Board demanded that Belle pay a civil fine, waive its right to judicial review, and cease and desist from operating. Instead, Belle lawyered up and formally contested the Board’s allegations, causing it to reconsider its threatened enforcement action. The Board’s decision to permanently withdraw its complaint soon followed.
“We are extremely pleased that the Board of Cosmetology has withdrawn its unlawful and overzealous threats against Project Belle, whose only crime has ever been to provide eager customers with convenient, premium quality beauty services at competitive prices in the privacy of their own homes,” said Daniel Horwitz, Belle’s attorney. “No government agency should be in the business of preventing popular, innovative businesses from serving willing customers just to protect entrenched industry competitors from competition. We look forward to working with the General Assembly in the coming months to make clear that the Board lacks the authority to deprive healthy, able-bodied consumers of their right to purchase their desired beauty services whenever and wherever they please.”
“The Board has decided to dismiss its complaint and Belle will continue its operations and growth efforts in Nashville,” said Armand Lauzon, Belle’s founder and CEO, who recently penned an op ed in The Tennessean calling on legislators to repeal Tennessee’s outdated cosmetology regulations. “We are delighted by the Board’s decision. It means that beauty professionals who have built businesses with us can continue their success, and our clients can continue enjoying services that many of them desperately need. It also means that economic growth and innovation can continue expanding in Tennessee. We are proud to have helped pave the way on this important issue.”
“I also want to send a special thanks to the legislators who took time to voice their support on our behalf, including State Representative John Ray Clemmons, State Senator Steven Dickerson, and State Senator Mark Green,” added Lauzon.
Case Update: On August 30, 2016, the U.S. Supreme Court ordered the State of Tennessee to file a response to the petition for writ of certiorari filed in this case by defendant Terry Norris. The State’s response was filed on September 29th, and it is accessible here. Mr. Norris’s petition for writ of certiorari was also featured as the “petition of the day” on SCOTUSblog last Friday.
Statistically speaking, the Supreme Court’s request for a response from the Tennessee Attorney General raises the likelihood that the court will accept this case for review from approximately 1% to roughly 10%-20%. If granted, Norris v. Lester will be one of the most significant cases to reach the U.S. Supreme Court out of Tennessee in recent history.
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 [email protected].
[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).
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 [email protected].
[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.
[3]United States v. DeCoster, 624 F.2d 196, 290 n. 129 (D.C.Cir.) (en banc) (Bazelon, J., dissenting); 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/.
[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).
