Tennessee Court System ‘struggles’ with indigent representation, audit finds

NASHVILLE, Tenn. (WKRN) — The Tennessee courts system faces continued struggles providing legal representation to those without financial resources as legally required by the U.S. Constitution, a state audit report revealed.

The report, published by the Tennessee Comptroller of the Treasury, said the Administrative Office of the Courts needed to work with state officials in all three branches of government to “ensure all citizens are afforded their constitutional or statutory right to legal counsel.”

Specifically, the report said the Administrative Office of the Courts should take actions such as increase the use of public defenders, analyze its private attorney fee structure and ensure consistent collection of administrative fees charged to indigent defendants.

Failing to address the issue could put the state at risk of legal action, per the report.

Indigent individuals lack the financial resources to hire legal counsel, typically requiring public defenders to represent them in court.

It’s a topic that has received previous attention from state auditors, according to the Tennessee Comptroller’s Office. The most recent audit stated the comptroller’s office previously looked at the office of the Courts’ “oversight of the state’s Indigent Representation Program” in 2015 and 2017.

In 2015 the Comptroller’s Office found courts across the state “did not consistently apply” rules from the Supreme Court of the United States and state law. Additionally, the office found courts did not consistently assess and/or collect administrative fees from indigent defendants in both 2015 and 2017.

After the 2015 report, the Tennessee Supreme Court formed an Indigent Representation Task Force that reviewed available options. The group issued a report that suggested a separate commission be formed to oversee the Indigent Representation Program in 2017.

The report was presented to the Tennessee General Assembly, but no action was ever taken to establish such commission as recommended, according to the comptroller’s office.

Additionally, the office management requested a $15.8 million increase in the Indigent Defendants’ Counsel budget and a Guardian Ad Litem increase of $4.5 million for the following fiscal year (2018-2019). The office’s intent, the report stated, was to raise the hourly pay for both to $100 per hour for capital cases — those that can result in the death penalty — and $65 per hour for non-capital cases.

Ultimately, however, the governor and general assembly approved just $9.7 million of the total $20.3 million budget request for 2018-2019 — about 47% of the requested amount.

With the $9.7 million in funding, the Tennessee Supreme Court made several changes:

• Removed the $40 per hour “out-of-court” rate for non-capital cases and established a $50 per hour rate for time spent in and out of court
• Increased the hourly rate for lead counsel (from $75 to $100 per hour) and co-counsel (from $60 to $80 per hour) assigned to capital cases
• Increased reimbursement camps for all felony claims by $500
• Increased reimbursement caps for all dependency and neglect and termination of parental rights cases by $250

Each year since 2018-2019, the Administrative Office of the Courts has made budget requests that include the amounts originally requested that year. None were approved.

Another complication in indigent representation comes from the lack of resources, according to the report. The comptroller’s report stated an anonymous survey of private attorneys and judges across the state in 2023 revealed “overwhelming responses” that said there were too few attorneys to handle indigent cases, those that were already handling them were spread too thin, and case delays due to the lack of capacity.

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Ultimately, the survey identified low compensation as the main issue, the report stated. A reported 84% of judges surveyed stated they have concerns about the private attorney compensation structure. About 80% of the attorneys surveyed believed hourly compensation and reimbursement caps were very poor, poor or below average, per the survey.

Combined, the issues point to a lack of effective assistance of counsel, which puts the state’s court system at odds with the Sixth Amendment, which guarantees that as a right for all people.

“If Tennessee does not ensure indigent defendants receive sufficient counsel, it increases the state’s risk of legal action, which has occurred in other states,” the audit report states.

The report cited cases in New York and Washington state as potential results. In New York, courts ultimately held state law setting compensation rates unconstitutional and ordered different hourly rates “without ceilings” until the state’s legislature took proper action. The New York legislature increased the funding in 2022, the report stated.

To view the full audit report, click here .

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