JUDICIAL BUDGET CUTS IN TENNESSEE DO NOT ADDRESS WASTE

The support of public safety by the state government is as important as the
support of national security is to the federal government. Keeping its
citizens safe from criminals is one of the bedrock reasons for the
existence of state government. Without public safety and national security,
we would have no freedoms.

Tennessee has not given public safety the priority or support it must have
to maintain safe communities, period. The state ignored its prisons in the
1970s, which led to their takeover by the federal courts, which was more
expensive in the long run. Gov. Don Sundquist ran on a promise to "make
Tennessee safe again" and made progress early in his administration.
However, Sundquist's gains were whittled away by time and budget issues.

Four years ago, the legislature's own study told them that prosecutor's
offices in this state were woefully understaffed. Another study two years
later told us that their salaries and benefits were the lowest in the
southeast, which probably translates into the lowest in the nation. The
legislature has failed to address these needs.

Meanwhile, like the prison situation in the 1970s, the hole has only gotten
deeper. The demographics in Tennessee have been changing, and the caseload
has been increasing. Being one of the fastest growing areas in the country,
population increases have swelled our criminal dockets. We are now faced
with an unprecedented methamphetamine epidemic. Because of funding cuts to
the Tennessee Bureau of Investigation crime labs, cases are delayed and
meth producers re-offend three and four times before they can be brought to
justice. Our communities are increasingly at risk, and few people seem to
notice or speak out.

The people of Tennessee have clearly told their government that they do not
want additional taxes. That leaves only one option: Cuts in spending.
However, the recent approach to budget cuts was not the smartest way to
approach the problem. A meat cleaver is not what is needed. It would be
better for the citizen's of Tennessee to use a surgeon's scalpel.

Gov. Phil Bredesen has shown signs of understanding the importance of
public safety by the fact that his budget cuts the judicial branch by only
2 percent compared to 9 percent in other areas of state government.
However, the 2 percent cuts have missed the fat and gotten into muscle and
bone. Hopefully, this is because there was only a short time to prepare a
complex state budget.

It would be in the best interest of the citizens of Tennessee if the new
administration would take the next few months to solicit advice and
objectively study the budget to find the waste and sacred cows. In doing
this, the priority most Tennesseans give public safety and accountability
for criminals should not be overlooked. If this is done, a wiser and better
budget can be submitted next year.

Make no mistake about it, as lean as the budget may seem to be, there is
waste and there are sacred cows. As important as the judicial branch of
government is to everyday life, its budget has more or less been overlooked
because law, safety and correction only account for 5 percent of state
expenditures. Nevertheless, the judicial system has its own version of
TennCare fiascos, albeit in smaller numbers of dollars. The critical fact
is that those comparatively speaking small dollars have a very significant
impact on the quality of our everyday lives.

Prosecution has always been considered an important function of state
government in Tennessee. Traditionally, defending criminals has not been,
even though most people acknowledge that the state should insure that those
who cannot afford an attorney should have one. Before 1988 appointing
private attorneys at cut rates primarily accomplished this for indigent
defendants. During that time, the state spent on indigent defense about 40
percent of what it did on prosecution.

After 1988 the public defender system was mandated statewide by the
legislature. Like TennCare, the legislature created something that has
continued to gobble up state dollars like some sacred cow with an appetite
that can never be satisfied. The last figures I have found are for the year
1999-2000, and indicate indigent defense costs in this state has grown to
about 95 percent of prosecution costs. However, public defender offices
probably handle no more than approximately 40 percent of the criminal caseload.

The public defender system was begun with the misguided assumption that
public defenders should have at least 75 percent of the resources of
prosecutors. Now we have enough data to know they handle less than half the
total cases, but the allocation of resources to these offices has not gone
down over the years.

Most public defenders I have come to know are hard workers and do a great
job for their clients, often under very adverse circumstances. The
representation they give defendants is on the whole in line with the
ability of private attorneys. However, unlike the private bar, there is
little incentive for public defenders to avoid economic inefficiency. The
truth of the matter is that this inefficient system has become a sacred cow
because it subsidizes the private practice of law for many lawyers in the
state.

There are other areas of waste in the judicial system that could be cut
without sacrificing justice or public safety. One is in the area of expert
witnesses for indigent defendants. The current system allows a defense
attorney to have an ex parte hearing before the trial judge to request
approval to spend state dollars to hire expert witnesses. An ex parte
hearing means only one side is allowed to go to the judge, in other words
the prosecutor is not allowed to know about it or argue that it would be a
waste of money.

The theory behind an ex parte hearing is that it would be unfair for the
defense to have to reveal their trial strategy to the prosecutor before
trial. However, this process allows the defense to make one-sided arguments
to the judge about a case, sometimes for a period of two to four years. Try
as they might, it is difficult for most judges to not have their outlook
about a case skewed just a little bit after hearing just one side of an
argument over and over. Decisions about the need for the expenditure of
funds for these purposes should be made independently of the trial judge
with restrictions based upon acceptable criteria.

Many judges will privately tell you that they do not like this process, and
that they routinely grant the requests because they believe a higher court
will eventually give in to it and grant it. Under these circumstances, if
the trial judge denies the request it would only result in delaying the
case further. Defense attorneys fear future malpractice claims from the
defendant if they do not seek such expenditures for expert witnesses. This
fear also encourages the filing of redundant and unnecessary pre-trial
motions, which further adds to the inefficiency, waste and cost of the system.

An entire cottage industry has developed around the use of expert
witnesses. For many their interest is not in seeking the truth about an
important issue, but to give the attorney who hired them something to use
with the jury. It is shocking and even laughable to hear some of the
testimony that comes from these experts, if they are even called to the stand.

Even if they are never used in a trial, they are still paid with tax
dollars. What at times would be even more shocking than their testimony
would be to know the exorbitant fees charged by many experts. The problem
is that the judicial system has made it difficult, if not impossible, to
get this information. Because there is little to no independent oversight
of the expenditure of these funds, many believe it has become a black hole
where many tax dollars needlessly disappear to the benefit of a few.

These funds are managed by the Administrative Office of the Courts, which
also controls the release of information about these funds. I have heard
judges lament that the AOC has itself become a wasteful state bureaucracy.
These judges will privately tell you that in the mid-1980s only a handful
of employees worked in the AOC, but now scores of state employees perform
its functions. Many judges complain that the AOC causes them to do needless
paperwork that takes them away from the courtroom and eats into their
efficiency.

The post conviction relief laws are another area in which scarce state
dollars are diverted for redundant work. In Tennessee's judicial system, a
defendant who is convicted of a crime by a jury has a right to appeal the
case to the Court of Criminal Appeals. If the defendant is not satisfied
with the result there, the case can then be appealed to the Tennessee
Supreme Court.

The PCR laws allow that defendant, even after two unsuccessful appeals, to
start yet another review process up through the same three courts. Many
states do not have PCR laws, and many would argue that it is not needed
since there is a federal habeas corpus process that is available. In spite
of this, millions of Tennessee tax dollars are spent every year on this
costly and redundant process.

Indigent defense attorneys have an incentive to keep these laws because
these laws enable them to churn out billable hours for "busy work" with
little oversight or control. Related to this are the large expenditures the
state makes in defending those who have been sentenced to death.

The first Sundquist campaign pledged to abolish the Capital Case Resource
Center, which was created before the public defender system for the sole
purpose of assisting those facing the death penalty and challenging the
constitutionality of Tennessee's death penalty law. However, under
influence from the state's Supreme Court, the administration abolished the
Capital Case Resource Center by renaming it. Today, tax dollars are still
spent in opposition to the death penalty that was also created by the
state. It seems that the state ought to make up its mind.

These are but a few examples of expenditures that should be reviewed before
another bad budget is produced in Nashville. To be sure, any waste in these
areas does not come close to the potential waste in TennCare, but the
difference is the difference in health care and being raped, robbed or
murdered. All are important, but the public safety concerns involve less
money and can probably be resolved if the budget focuses on what most
Tennesseans see as necessities. We cannot afford the luxury of not deciding
what is truly necessary and important in the criminal justice system.

The new administration and legislature have one year to look at the next
state budget. Let us hope they will do something that has not been done
before: Get their spending priorities in line with the public's desire to
live in safe communities without wasting their tax dollars.