Editor’s note: The Tennessee Supreme Court announced Tuesday the state’s Administrative Office of the Courts “will make a significant budget request to support increasing the attorney hourly rate to $80” in its budget request for the next fiscal year. It says the state’s current rate, unchanged since 1997, is the lowest in the nation at $50 and is actually destabilizing the juvenile and criminal justice systems.
JOHNSON CITY, Tenn. (WJHL) — Two things that shouldn’t have been heading in opposite directions in Johnson City Juvenile Judge Sharon Green’s court — the number of cases with people needing court appointed attorneys, and the number of attorneys available to answer that call.
“We are visibly more impacted by the number of cases filed by the Department of Children’s Services,” Green said Wednesday during a break inside her Johnson City courtroom. “Also it might not be (DCS), it might be a grandmother or a relative or a family friend who notices that there’s real issues going on with a family.”
Green estimates 80 to 85% of those cases require court-appointed attorneys due to the families involved meeting income guidelines entitling them to free representation. But with Tennessee’s reimbursement rate of $50 an hour unchanged since 1997 and now sitting at the lowest in the nation according to the state supreme court, finding help for clients and children is getting more and more difficult.
“Within the past say two months we’ve lost three of some of our, I’ll call them heavy hitters, attorneys that represent parents and have been very willing to represent parents,” Green said.
“I don’t want to say they’ve been lured away, but they’ve been hired by state agencies. We’ve got one that’s gone with the district attorney general’s office. We’ve got one that’s gone with the public defender’s office, we’ve got another one that has gone on with (DCS).”
She said the reason is simple.
“These are attorneys that are supporting their families and a lot of times they can’t support their families on the rate that is currently being paid to them.”
Often, Green said, her court’s cases require two, three or even four appointed attorneys — for multiple parents and a guardian ad litem for the children. Inability to get an attorney in a timely fashion and get through a case has multiple impacts, Green said.
“If we can get a child safely back with those parents, that’s where I want that child to be, safely back with those parents,” Green said. “So it’s going to slow that process down.”
In cases where parents do end up regaining custody, sometimes “the child gets more attached in another location and the parent is just left stranded.”
‘You have to do it because you love doing the work’
Some of Johnson City attorney Erin McArdle’s income comes as a court-appointed attorney in both juvenile and adult criminal court. She just learned this week that in that work she’s making less than she would in any other state.
“I knew that Tennessee’s reimbursement rate was one of the lowest but I was a little shocked to see it’s the lowest. It has not been increased since 1997. You have to do it because you love doing the work.”
Going rates for private attorneys are generally at least double, and often more, than the cap the state allows a court-appointed attorney to bill in similar cases.
McArdle said she does love the work and likes to be part of serving people whose right to an attorney regardless of income is constitutionally required.
“In most of these cases, including criminal, the odds are against the person. They have to have somebody that is going to be their voice, that knows the legal system, that can adequately represent them and without they get lost.”
In juvenile cases, where parents often are at risk of losing their children, “that is a due process right,” McArdle said. “They have the ultimate right to have somebody that knows what they’re doing that can represent them in order to hopefully get a good outcome.”
McArdle takes a number of both juvenile and adult criminal cases. At the current rates, she can earn a maximum of $5,000 for a first-degree murder case she’s been appointed on. That’s a total of 100 hours of work before she’d have to request additional funds beyond the current allowed maximum.
“I can’t even begin to imagine,” how many hours the case will require, McArdle said.
“Those type of cases take on pretty much a full time job. You do obviously have to shuffle things around but they require a lot of attention especially when you consider someone’s entire life is on the line.”
Chief justice: Courts ‘running out of options’
Tuesday’s release from the Supreme Court came the same day Holly Kirby, a 2014 Bill Haslam appointee, was named chief justice. Headlined “Changes Needed to Stabilize the Justice System,” it telegraphed the Administrative Office of the Courts’ plan to request what will likely amount to about a $30 to $35 million increase in its indigent defendants’ counsel and guardian ad litem budget.
At the current $50 hourly rate, this year’s budget includes $11 million for guardian ad litem and $44.8 million for indigent defendants. An $80 rate, with adjusted caps for maximum pay, would create the $30 million-plus increase.
Even that wouldn’t match inflation since 1997, which would require about a 90% increase. It also wouldn’t equal the rate paid in Virginia, which is $90, though it would top Alabama’s rate of $70 an hour. And it would be on the low end of a 2017 Indigent Task Force recommendation of $75 to $125 an hour (adjusted for inflation).
In a news release, Kirby described a system “teetering on the brink.”
“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.”
At the state courts’ request, the Tennessee Comptroller’s Office began working with the Administrative Office of the Courts to try and determine whether Tennessee is meeting its constitutional and statutory obligations to provide 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. That investigation is still pending.
But Chief Justice Kirby sounded confident of the impact, as do Judge Green and McArdle. Kirby said $50 an hour wasn’t adequate when the 2017 study was completed, and “it’s even more inadequate today.”
Green applauded Kirby’s statement and said it was the strongest she’d ever heard come out of the state supreme court. She said an increase to $80 “would be huge” and likely increase the available pool of good attorneys.
“We could move cases along faster. We wouldn’t have the docket bogged down with a family coming back to court and there not having been an attorney appointed to represent them.”
Green called the change “overdue.”
“They’re doing services for our children and their families, and so it makes you wonder, where are our priorities if it’s not our children and our families?”
McArdle said she isn’t certain how much difference a 60% hike would make, but she sees the impacts of the current system. She estimates she’s appointed an average of five to six new cases per week, including juvenile criminal, juvenile dependency and neglect, and adult criminal courts.
“I’ve turned down requests from Greene County and Sullivan County this week alone because I couldn’t fit the court appearances into my schedule.”
The office of the courts sets its own budget, but that budget is funded by the state legislature, which will hold the future of this matter in its hands. Kirby said the impacts from the current situation are myriad.
“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.”