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
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I understand why our District Attorney General would want the requirement repealed.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.

 

‘Gideon’s Promise’ Visit Raises Awareness about Role of Public Defense in Memphis

Memphis stop focuses on overloaded criminal justice system, workload stress for public defenders and pressure on clients to plead guilty.
'Gideon's Promise' founder Jon Rapping speaking at a Memphis social about his organization's efforts.
‘Gideon’s Promise’ founder Jon Rapping speaking at a Memphis social about his organization’s efforts.

When ‘Gideon’s Promise‘ chose Memphis as a stop on its four-city tour, the goal was to raise awareness of the organization and the work of public defense.

The two-day visit did that and also strengthened the connection between one of the most innovative criminal defense training programs in the country, and Tennessee’s largest and oldest public defense system.

This summer, ten promising young attorneys from the Shelby County Public Defender’s Office will begin training with the Gideon’s Promise program at Wake Forest University in North Carolina. They will join a cohort of ten of their colleagues already in the program. With the addition of these newly trained attorneys, nearly 25% of the attorney staff at the public defender’s office will have received Gideon’s Promise training.

This type of “incremental” change is what Gideon’s Promise founder Jon Rapping and reform-minded chief public defenders, like Shelby County’s Stephen Bush, hope will help drive efforts to make the system more fair for both client and attorney … office-by-office throughout the South.

What many people may not realize is that the fate of client and attorney are closely aligned, particularly inside the public defender’s office,” says Stephen Bush. “That’s because an overworked criminal justice system too often results in negative results for both parties — public defenders are overwhelmed with cases and cannot consistently deliver the quality results they are willing and capable of delivering and clients that do want a trial are often discouraged to hold out for their day in court, because they could spend days, weeks, months … even years…. waiting.

During the visit, Commercial Appeal columnist David Waters, featured one of our office’s Gideon’s Promise attorneys. The article described the frustration both he and his clients experience in a system that incentivizes plea agreements and in which a jury trial often comes at too high a cost.

“If you can’t bond out, that changes everything. That’s when the pressure starts building to make a deal. You’re sitting in jail and your life is falling apart and it’s probably already a mess.”  – Ben Rush, Assistant Shelby County Public Defender (Commercial Appeal, 5/30/14.)

In an article published in the Memphis Flyer, Rapping emphasized that the goal of Gideon’s Promise is to provide new attorneys the tools to effectively fight for their clients, but also to provide the emotional support public defenders need.

I really started to see these systems where really passionate, young public defenders would go in for the right reasons and have that passion beaten out of them. They would either quit or resign to the status quo. This organization really developed to be a program that not only provides training but provides support and inspiration to these lawyers so they don’t lose their idealism.”  – Jon Rapping, Gideon’s Promise (Memphis Flyer, 5/31/14)

You can learn more about the Gideon’s Promise program here. You can also support the organization’s efforts by donating online.

Read the full articles about the Gideon’s Promise visit to Memphis here:
David Waters: Incarcerated Until Proven Guilty
Attorneys and Advocates Aim to Improve Public Defense