Op-Ed: Repeal of Smart Legislation Would Cost Shelby County

This article was originally published in the Commercial Appeal on February 26, 2015.  Republished with permission from the Commercial Appeal. 

Stephen Bush, Shelby County Public Defender

Stephen Bush, Shelby County Public Defender

Memphis lawyer Bill Haltom recently published “The Other Fellow Might Be Right,” a delightful account of Senator Howard Baker that celebrates the Tennessee lawyer’s civility and commitment to building systems of governance that stand the test of time and serve our communities well.

Too often in our public policy discourse we fail to recognize the merits of healthy debate, the potential of compromise and the benefits of incorporating different opinions. Sen. Baker appreciated each of these things and understood that good government requires civility, and it values contributions from all sides. In that spirit, I encourage our state lawmakers to move with careful deliberation before repealing a law that has safeguarded the integrity of our local justice system for more than two decades.

House Bill 241, sponsored by Rep. Curry Todd, would eliminate the requirement that Shelby County increase funding to the public defender at 75% of increases for the prosecution.

I understand why our District Attorney General would want the requirement repealed.  Finding revenue sources for the work of both our staffs is an ongoing challenge and is increasingly frustrating as both sides strive to ensure the integrity of the criminal justice system for all citizens of Shelby County.

Dist. Atty. Gen. Weirich has a point. There are deep, systemic problems with the way our criminal justice system is funded. Frankly, I wish our state lawmakers were debating bold criminal justice reforms like those enacted in so many Southern states; the resulting legislation has reduced demand on overwhelmed and costly criminal justice systems. Tennessee lawmakers should be looking to our neighbors in Kentucky and Georgia and even to Texas and Florida. These states have enacted cost-saving criminal justice reform measures that have reduced the size of jail and prison populations, while they continue to experience falling crime rates, just like the rest of the country.

Instead, we are left with a proposal to erase a sensible law that has worked for 23 years to maintain some balance between public defenders and prosecutors and control criminal justice costs.

The real problem, however, is that spending on criminal justice systems has been gradually shifted from the state to local taxpayers. This has never been more evident than with prosecution and defender services in Shelby County. The General Assembly should fix this by providing adequate resources to both sides. Repealing the 75% Rule will only make things worse.  There are consequences to consider before proceeding with such a one-dimensional response.

It is a near certainty that passage of this bill will lead to significant new local funding for the prosecution. Additional prosecution resources will inevitably lead to increased demand on our court systems and local jails. Public defenders play a critical role in meeting those demands.

To grow one side of this equation while simultaneously shrinking the other is a recipe for rapidly escalating costs elsewhere in Shelby County. Jail costs will go up; courts will slow down.  And the quality of our justice system will suffer.

I believe Senator Baker would have insisted that the quality of our justice system is paramount – that there must be balance. There is a growing mandate to confront what even the United States Department of Justice acknowledges is a national crisis in public defense, and advocates as diverse as Koch Industries and the MacArthur Foundation agree that well-resourced and properly functioning systems for public defense are essential.

Rather than simply deciding whether House Bill 241 should be passed, I encourage Tennessee lawmakers to further study these funding disparities and determine the real costs of dismantling a long-standing, smartly designed rule that preserves some balance and fiscal restraint. I oppose passage of HB241 as a narrow solution to a broad problem, but I am not opposed to careful consideration of what it might take to build a better, more cost-effective criminal justice system.

Stephen Bush is the Shelby County Public Defender.

Click here for the original post on the Commercial Appeal website

 

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Posted in #SeeJustice, Funding Public Defense, Justice Reform, Media, Public Defender's Office, Public Defenders, Stephen Bush, Stephen C. Bush

Shelby County’s Jericho Project Wins National ‘Innovations in Criminal Justice’ Award

6d467-jericho_newtag_cmyk_vert_mac-tif-scaled1000FOR IMMEDIATE RELEASE

Memphis, TN, 2/20/2015 –  The Shelby County Jericho Project has been chosen as one of eight programs across the country approaching criminal justice challenges in new and effective ways. The recipients of the 2015 “Innovations in Criminal Justice Award” were selected by the Association of Prosecuting Attorneys (APA) in partnership with the U.S. Department of Justice’s Bureau of Justice Assistance (BJA) and the Center for Court Innovation.

“I am delighted that we can bring together a multidisciplinary group of criminal justice leaders to discuss initiatives that are examples of a more efficient and effective justice system,” said BJA’s Director Denise O’Donnell. “The program highlights the most innovative criminal justice programs across the nation, but also provides summit participants with the requisite knowledge and skills necessary to implement or replicate these practices in their own jurisdictions.”

The Jericho Project was launched more than a decade ago by the Shelby County Public Defender’s Office to better serve people living with serious mental illness and substance use disorders who were cycling through the criminal justice system.

The main architect of the Jericho Project is Shelby County Chief Public Defender, Stephen Bush. He developed the initiative while an Assistant Public Defender, a position he held for almost 20 years before being appointed Shelby County’s 10th Public Defender in 2010.

“The Jericho Project has helped break down barriers to recovery for hundreds of people since it launched more than a decade ago,” said Bush. “We are honored that a program developed in Shelby County is being recognized as a national model. And particularly so, that this recognition comes from leading national prosecutors. Supporting people who live with addiction and mental illness as they transition from jail to our community is vital work, and we hope this award helps other communities develop better ways of doing it.”

Nearly 60% of those participating in Jericho have successfully completed their recovery plans and also avoided further contact with the criminal justice system. By building linkage plans to community treatment and services tailored to client needs, this comprehensive approach has cut in half the recidivism rate typically found among those with serious mental illness.

The Jericho Project will be recognized at the “Innovations in Criminal Justice Summit III” April  20-21, 2015 in Los Angeles.

Media Contact: Josh Spickler  901.216.2024  josh.spickler@shelbycountytn.gov

Download Media Release PDF Here

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Posted in #SeeJustice, Jericho, Justice Partners, Justice Reform, Media Release, Public Defender's Office, Public Defenders, Stephen Bush, Stephen C. Bush

Statement on Tennessee HB 241

Proposed State Legislation Would Repeal Local Funding Rule

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FOR IMMEDIATE RELEASE

Memphis, TN, 2/20/2015 – Tennessee lawmakers have introduced legislation that would repeal T.C.A. 16-2-518, the so-called “75% Rule” for local public defender funding. The rule was established in 1992 and requires that local government provide funding to the public defender at 75% of any funding increase to the district attorney general.

The Shelby County Public Defender’s Office opposes passage of House Bill 241 and Senate Bill 1324, which would dismantle fiscally sound legislation that has served our community and state well for more than 20 years.

The 75% Rule helps ensure fairness in a necessarily adversarial system. Repeal of this longstanding and sensible check on spending would alter the balance that must exist when life and liberty are at stake, as they are daily in the criminal justice system.

Local government helps fund public defense in Tennessee’s urban centers, while the State is the primary funding source for public defenders elsewhere. The 75% Rule has worked for more than two decades to keep costs down for both State and local government. Repeal of this rule is a solution looking for a problem. It is unclear how this community and the State of Tennessee would benefit from the removal of this smart and fiscally responsible mandate.

What is clear is that removing this mandated balancing mechanism has the potential to drive up costs for the State, destabilize the funding structure of our local criminal justice system and trigger a dangerous imbalance in our courtrooms.  A weakened public defender system exposes the community to more wrongful convictions, unfair sentences and, ultimately, a more expensive County Jail.

The 75% Rule is the kind of policy that Tennesseans should be proud of. It should not be repealed.  We urge our state lawmakers to uphold this commitment to fairness, justice and good stewardship by voting against HB 241 and SB 1324.

Media Contact: Josh Spickler at 901.216.2024 or josh.spickler@shelbycountytn.gov

Download Statement PDF Here

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Posted in Funding Public Defense, Public Defender's Office, Public Defenders

Read with Us in the JustCity Book Club

stevenson

Bryan Stevenson, Author

“Bryan Stevenson is America’s young Nelson Mandela, a brilliant lawyer fighting with courage and conviction to guarantee justice for all. Just Mercy should be read by people of conscience in every civilized country in the world to discover what happens when revenge and retribution replace justice and mercy. It is as gripping to read as any legal thriller, and what hangs in the balance is nothing less than the soul of a great nation.”

– Archbishop Desmond Tutu

We have long admired the work of Bryan Stevenson, founder of the Equal Justice Initiative in Montgomery, Alabama. So when we read his new book, ‘Just Mercy,’ we did not expect to be even more moved by the difficult path he has chosen: challenging the death penalty, prison sentences for children and the incarceration of those with mental illness.

We also did not think we could be more outraged by the brokenness of the criminal justice system, until reading Stevenson’s moving account of the men, women and children he has stood beside during his decades-long struggle for justice.

But most importantly, we did not expect to feel such hope — to see that with great personal sacrifice and perseverance, one person can and has changed the system.

That’s why we invite you to read ‘Just Mercy’ with us and then have a discussion about the important work being done by Bryan Stevenson at Equal Justice Initiative, public defenders in Memphis and advocates around the country. Pick up a copy at Burke’s Book Store or at The Booksellers at Laurelwood and sign up at the link below to have your book club considered.

We’ll choose one book club each month. An attorney from the Law Offices of the Shelby County Public Defender will join your club to answer questions about the criminal justice system that Stevenson explores in Just Mercy and discuss what we can all do to make Memphis a more just community.

 

Just Mercy Cover

 

Sign Up for the JustCity Book Club Here!

Posted in #SeeJustice, Death Penalty, Justice Reform, Juvenile Justice, Mass Incarceration, Outreach, Poverty, Public Defender's Office

7 Numbers That Made Memphis Better in 2014

SeeJustice FlagWe hear a lot about injustice today in the form of continuing racial tensions, worsening economic inequality and a dysfunctional criminal justice system. At the start of 2014, these discussions were largely limited to non-profit, government and community organizations who work with those affected, and among those facing these challenges in poor and mostly minority communities.

But by the end of 2014, discussions and debates about injustice are no longer pushed to the margins — this issue is now part of our social media feeds, news stories, community meetings, and family get togethers.  We may not agree on solutions or causes, but it is becoming increasingly difficult to say we live in a country that gives everyone a fair shake.

As a tumultuous year comes to a close — we take note of a few things in Memphis that give us hope. Take a quick look, by the numbers, at efforts in our city that remind us:

“The arc of the moral universe is long, but it bends toward justice” – Martin Luther King, Jr.

PLACEHOLDER PLACEHOLDER

Screenshot 2014-12-23 10.42.19FRESH STARTS. 

Each day, thousands of Memphians are trying to get a job or a professional license — but can’t.  One major obstacle is a criminal record, which is often a major barrier to employment long after the sentence has expired. Tennessee has narrow expungement laws that can help, but even in the few instances in which someone qualifies, applying for an expungement can require legal guidance, paperwork and hundreds of dollars in filing fees.  In 2014, the Shelby County Public Defender’s Office assisted with paperwork and paid filing fees for 15 people seeking expungement or citizenship right’s restoration. Find out more about the Clean Slate Fund established through a Memphis Bar Foundation grant.

 

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DIVERSIONS.

In 2014, the Jericho Project diverted 97 people battling mental illness and/or addiction from incarceration. Since its inception, nearly 60% of those participating in Jericho have successfully completed their recovery plans; they have also avoided further contact with the criminal justice system. You can learn more about the Jericho Project here.

Screenshot 2014-12-22 15.31.03

 

JOBS.

Advance Memphis was founded in 1999 to bring economic revitalization to one of the poorest neighborhoods in the city. Since then, the people of the 38126 community have partnered with this non-profit to build an impressive record. In 2014 alone, 132 people found employment after gaining job and life skills training through Advance Memphis. Read about Advance Memphis here.

 

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HOMES.

The Community Alliance for the Homeless (CAFTH)  reports that 635 Memphians left homelessness for permanent housing in 2014! These impressive gains were made possible by a network of providers throughout the greater Memphis area. These efforts were coordinated through CAFTH, a private, non-profit entity that provides planning, technical assistance, and service coordination to public and private agencies working to end homelessness in Memphis and Shelby County. Learn about The Community Alliance for the Homeless here.

 

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 CONSULTS.

On the second Saturday morning of each month, you’ll find civil and criminal lawyers from firms big and small gathered at the Memphis Public Library. It’s the Memphis Area Legal Services (MALS)/Memphis Bar Association (MBA) Saturday Legal Clinic where anyone who needs free legal advice can get it.  In 2014, lawyers volunteering with the MALS/MBA Saturday Legal Clinic served 908 people! Click here to find out more about the MALS/MBA Saturday Legal Clinic.

 

Lifeline

 CLEARED LOTS.

Lifeline to Success is a non-profit that uses training and community service to provide those returning from incarceration some of the tools they need to have a more productive life. People accepted into the training must begin taking classes 6 months before being released.  After their release, they immediately begin training with Lifeline. The program also runs the highly respected Blight Patrol — people returning from incarceration are put to work clearing blighted lots in Frayser. The result — the Blight Patrol provides a much needed service in a community littered with vacant properties and those doing the work find purpose in helping the community.  In 2014, 89 ex-offenders participated in Lifeline to Success and cleared 3,500 lots in Memphis! You can learn more about Lifeline to Success here.

PL.

Screenshot 2014-12-23 14.49.13

 

BURRITOS. 

If you see a group of cyclists handing out small, shiny, tinfoil packages around Memphis — you may have spotted the Urban Bicycle Food Ministry.  Each Wednesday evening and Saturday morning, volunteers gather to first roll nutritious burritos and put together supplemental packets for those in need (e.g. bug spray in the summer, coats and gloves in the winter). Then they ride through the city distributing these packets to those experiencing homelessness and anyone who is hungry and in need. By serving approximately 300 people each week, The Urban Bicycle Food Ministry estimates it has rolled more than 20,000 burritos in 2014! Read about the Urban Bicycle Food Ministry here.

____________________________________________________________________

These seven groups are but a snapshot of the organizations doing good and difficult work in Memphis and Shelby County. These efforts bring hope to those who have none and help clear a path for Memphians who continue to face barriers in our social, civic and criminal justice systems. In 2015, consider supporting these and other organizations that work to bring more equity and access to justice in our community. And when you read about other good and just work being done — share it with us on social media using #SeeJustice

Here’s to a more just Memphis in 2015!

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Posted in #SeeJustice, Justice Partners, Poverty, Public Defender's Office, Public Defenders, Reentry

Shelby County Public Defenders Named 2014 Memphis Bar Foundation Fellows

2014 Memphis Bar FoundationEach has served indigent clients in the Memphis area for more than two decades — now assistant Shelby County Public Defenders Jack Green and James Etta Rayford have been named Fellows of the Memphis Bar Foundation.  Green and Rayford were recognized at a November event in Downtown Memphis.

Green has been a public defender for 26 years and is a supervising attorney for the office. Currently, he serves as the Director of Performance Metrics for the public defender’s office. Green collects case data that help manage attorney workloads.

He is also the head of the Justice System Administration, which tracks client movement through the criminal justice system, monitors progress and identifies delays.

Rayford has practiced public defense for the past 24 years. Most recently, she joined the Juvenile Defender Unit, a highly-specialized division of the Shelby County Public Defender’s office which represents children in juvenile court.  Rayford chose to serve on the new unit soon after it was established in 2013. The new defender unit was developed to help meet the agreement between Shelby County government, Shelby County Juvenile Court and the Department of Justice.

After the Civil Rights Division of the DOJ found due process and equal protection violations at Juvenile Court, the Shelby County Public Defender’s Office was called upon to provide attorneys for the defense of children and to supervise the defense function of Shelby County’s juvenile justice system.

Members of the Memphis Bar Foundation elect fellows based on ethics and professionalism.  Eligible nominees must have practiced law at least 10 years. The Memphis Bar Foundation is the charitable arm of the Memphis Bar Association.

Posted in Justice Partners, Juvenile Justice, Media Release, Public Defender's Office, Public Defenders

New Report Shows Outdated System Failing Lawyers, Indigent Clients in Tennnessee

tba-logoAnyone facing criminal charges that could result in imprisonment has the right to an attorney — if he cannot afford an attorney, one will be appointed and paid for by the government. That right was established in 1963 by the landmark Supreme Court case Gideon v. Wainwright.

But a study just released by the Tennessee Bar Association (TBA) reveals that fewer private attorneys say they are willing to accept this work, because the pay is too low and paperwork too burdensome.

That’s bad news for communities across Tennessee, because it results in fewer private attorneys willing to accept appointed cases. In turn, those attorneys still willing to accept cases may have even less time to spend on appointed cases as a result of the burden of additional clients. In addition, some appointed attorneys may be unwilling to spend adequate time on a case for which there will be inadequate compensation. Of course, the person facing criminal charges bears most of the burden in a system like this as poor advocacy results in more time spent awaiting disposition, longer sentences and more wrongful convictions.

A 2013 study released by the National Association of Criminal Defense Lawyers (NACDL) ties compensation to fair representation: “The attorney’s right to fair compensation and the defendant’s rights are ‘inextricably linked’ and ‘[t]he relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored.'”

appointed compensationIn Shelby County, appointed counsel are more often than not, public defenders.  In fact, the Shelby County Public Defender’s Office handles more than 35,000 cases each year. But in cases of conflict (for example, when two defendants are jointly charged with a crime or the victim in the case was a former client of the public defender) a judge may appoint a private attorney to defend an indigent client.

Private attorneys in the Memphis area are also appointed in the majority of the cases involving children, as the Shelby County Public Defender’s new, specially-trained Juvenile Defender Unit only has the capacity to handle a portion of the approximately 4,000 children facing delinquency charges in Juvenile Court each year. In a poor, urban community like Shelby County, a healthy appointed counsel system is a critical part of the criminal justice system.

The TBA report reveals an appointed counsel system in Tennessee that is far from healthy. The TBA is currently working to raise the compensation rate from the current $40 per out-of-court hour for non-capital cases, $75 per hour for out-of-court on non-capital cases. The rate has not changed since 1994 and according to the TBA, this makes Tennessee court-appointed attorneys among the lowest paid in the country.

A national study of compensation for appointed counsel shows that Tennessee is among the states paying at the bottom end of the fee scale.

“The average rate of compensation for felony cases in the 30 states that have established a statewide compensation rate is less than $65 an hour with some states paying as little as $40 an hour” — from the National Association of Criminal Defense Lawyers (NACDL) study Rationing Justice: The Underfunding of Assigned Counsel Systems

 

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Bar graph from TBA.org

Not only are Tennessee appointed counsel paid at an unusually low rate — lawyers in the survey also cited state-mandated limits on the total fee that are too low to provide adequate counsel.  The Tennessee Supreme Court’s Rule 13, which contains the rules for appointed counsel, caps maximum compensation on most non-capital cases at $500-$1,500, depending on the type of offense.  Nearly 60% of the survey respondents reported that they “frequently” or “always” reached the compensation cap.

In addition to limited compensation for their legal work, respondents to the TBA survey reported spending an unreasonable amount of time preparing and submitting their fee claims to the state — some as much as 5 hours on compensation paperwork and submission.  In fact, more than 75% of the attorneys admitted that they had not even bothered submitting claims for payment, because it took too much time to file.

Given the low fee and administrative burden, it’s not surprising that one-third of the survey respondents said they have stopped taking appointed cases. A vast majority of that group said it was directly related to low compensation.

The TBA will be using the results of this study to continue to push for changes to Rule 13, and how private, appointed counsel is compensated.

Full reports here: 

You can read the results of the TBA survey here.

Click here to read the TN Supreme Court’s Rule 13, which sets the rate for appointed counsel.

Find the entire NACDL report “Rationing Justice:The Underfunding of Assigned Counsel Systems” by clicking here.

CORRECTION: The original post stated that non-capital case rate was a blanket $40 per hour. The actual rate is $40 per hour for out of court, trial preparation and $50 per hour for in-court work. 

Posted in Funding Public Defense, Justice Reform
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