This article was originally published in the Commercial Appeal on February 26, 2015. Republished with permission from the Commercial Appeal.
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I understand why our District Attorney General would want the requirement repealed.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.