Pending legislation would impact Constitutional right to counsel

By Jay Perry

The Tennessee and Federal Constitutions both guarantee the right of the accused in “all criminal prosecutions” to have an attorney.  For an increasing number of people who cannot afford an attorney, that right is satisfied by the appointing of an attorney.  In 1989 the General Assembly of Tennessee created a statewide system of public defenders divided into 31 districts.  Those public defenders handle the bulk of appointed cases although private attorneys are appointed in cases where the public defenders’ have an ethical conflict.  The court is to appoint an attorney when the accused can demonstrate that they are “indigent” and this usually means the completion of an affidavit and questioning by the judge.

There is currently proposed legislation that would deny an appointed attorney to anyone who has made an appearance bond in their case.  This bill, SB 2989 – HB 3364, would require many facing a criminal charge to make an impossible choice between freedom and exercising their right to an appointed attorney.  This is true because in many cases the appearance bond is low, sometimes as low as $500 or $1000 (appearance bonds typically increase with the seriousness of the charges).  To make such a bond would only require the accused (or their family) to pay a bondsman $50-$100.  Many people, even those who are truly indigent, are able to utilize family resources to scrape together that relatively small amount of money.  It makes sense to do so also, as many cases take a long time to arrive at a disposition and often the end result is no jail time.  And that small amount does not even begin to pay the fee of any competent attorney.  This bill does not explain how these defendants would find attorneys willing to represent them for such little money.

The justification for this proposed legislation must be largely economic because public defenders very often handle overwhelming case loads and private attorneys are compensated by the state for appointed cases.  Interestingly however, the Fiscal Review Committee found that the fiscal impact of this bill would be not significant.  The impact would be significant however on those defendants who are indigent in every sense of the word.  They would be consigned to wait in jail for the end of their relatively minor criminal proceedings in order to have the assistance of a lawyer.  As written, this bill brings into conflict a constitutional right with the natural yearning of all people for freedom.   As such, this bill directly contradicts the principles espoused in both Constitutions by inappropriately placing a price of the invocation of those rights.