Across the state of Tennessee, many judges are struggling to effectively administer justice in their courtrooms. The state must rely on court-appointed attorneys to provide mandatory legal counsel, but the pool of available attorneys has shrunk considerably.
“Every day we hear from judges who must find lawyers to represent citizens who are constitutionally entitled to legal counsel. They tell us that the system is teetering on the brink,” Tennessee Supreme Court Chief Justice Holly Kirby said. “Court proceedings can’t happen without court-appointed attorneys, but attorneys can’t afford to take cases at the current rates. The criminal justice and juvenile court systems are running out of options.”
Nearly half of all cases with a court-appointed attorney are in juvenile court and involve families and child welfare.
“I have been on the bench for 10 years and it has never been so dire,” Hamilton County Juvenile Judge Rob Philyaw said. “In the past year, we have lost at least 13 attorneys who no longer take court appointments. We have over 2,000 cases a year that must have a court-appointed attorney.”
Judge Vicki Snyder, a general sessions and juvenile court judge in Henry County, also reports that her list of available attorneys to take appointments in either general sessions or juvenile cases is the shortest it has ever been in her 17 years on the bench. At times the court is struggling to hold preliminary hearings in the timeframe required by law.
“Juvenile cases are a particular problem because they can go on for an extended period of time and can be very challenging,” Judge Snyder said. “Attorneys are dedicated to helping children and families, but sometimes they can only do it for so long.”
Tennessee’s reimbursement rate for court-appointed attorneys is the lowest in the country. Tennessee’s court-appointed attorneys are paid $50 an hour, a rate that has not changed since 1997. There are total caps in place for almost all cases, and lawyers are reimbursed at the end of the case. This can take months, if not years.
A 2017 Indigent Representation Task Force that included judges, attorneys, legislators and others found the rate inadequate and recommended raising it to between $75 to $125 an hour. Since then, the Supreme Court has made multiple budget requests for funds to increase the rate or otherwise support the program, but it has only received enough to eliminate the difference between in-court and out-of-court work and increase caps.
In January 2023, the Administrative Office of the Courts worked with the Tennessee Comptroller of the Treasury to determine whether the state is meeting its constitutional and statutory obligation to provide citizens effective assistance of counsel. Specifically, the Comptroller reviewed the impact on the court system of the low hourly rate of compensation for appointed counsel in non-capital cases. The Comptroller’s investigation is still pending.
“$50 an hour was not adequate in 2017, when the Indigent Representation Task Force did its study. It’s even more inadequate today. Change must come,” Chief Justice Kirby said.
Technically, the Supreme Court sets the rates under its rules. But the rates can’t be raised unless the overall budget for the program is increased. The budget is set by the General Assembly.
“Like all of State government, we’re required to be fiscally responsible. The Supreme Court can’t increase compensation rates unless the General Assembly increases the budget. If we started paying higher rates without a budget increase, the program could run out of funds before the end of the fiscal year and some folks would be paid nothing at all,” Chief Justice Kirby said. “This is for Tennessee families and children. It has to be a collaborative effort among all three branches of government.”
The Administrative Office of the Courts will make a significant budget request to support increasing the attorney hourly rate to $80 in its proposed budget for FY 2024-25. The request will be aimed at increasing hourly rates and caps in an effort to stabilize the criminal justice and juvenile court systems.
“Paying lawyers such low rates doesn’t make the cases go away. It just means cases are delayed, overturned, or returned to the trial court on appeal. That doesn’t help anyone,” Chief Justice Kirby said. “Victims are left waiting without justice and are retraumatized by additional proceedings. Children linger in foster care. Witnesses move and misremember, evidence deteriorates. It’s not efficient or cost-effective. Our citizens expect and deserve a fair, efficient, unbiased justice system. Right now, these issues hinder us from being able to give it to them. We look forward to working with judges, the General Assembly, the Governor’s Office, and all others concerned with the administration of justice to resolve the problem.”