The 75 Percent Rule 

New legislation proposed by Representative Curry Todd would weaken the public defender’s office.


Remember that time when state representative and American Legislative Exchange Council (ALEC) board member Curry Todd submitted a bill to aid farmers and school children by creating an extra hour of sunlight? How about that time when he was living rent free in a lobbyist's home? Or when he killed the Influence Disclosure Act, a measure that would have required lawmakers to acknowledge the influence of outside groups on public policy?

Let's face it, this West Tennessee representative isn't the sharpest nor is he the most ethical knife in the drawer. Even if his most recent proposal doesn't overturn any natural laws, like inertia or gravity, HB241 displays Todd's usual lack of seriousness. If passed, Todd's bill will kill good legislation that helps fund our public defender system and has served Tennesseans well for 23 years. The proposed legislation, in the long run, benefits nobody but Todd's fellow ALEC member, the Corrections Corporation of America, a private company that operates three of Tennessee's 14 prisons.

I'm not suggesting that ALEC was involved in crafting this bill, but it wasn't Todd. And no matter who's responsible for drafting the language, who do you think wins when the state decides to abandon even the pretense of parity and stacks the deck in favor of the prosecution? Here's a hint: not the citizens of Tennessee.

If passed, HB241 would undo T.C.A. 16-2-518, a regulatory measure that controls disparity in the funding of prosecutors and public defenders. Sometimes called the "75 percent rule," T.C.A. 16-2-518 ensures that whatever money is budgeted for prosecutors must be matched at a 75 percent level for public defenders. In simple terms, if the county gives District Attorney Amy Weirich's office $100, they must give the public defender's office $75.

Thirty years ago, a mere decade before the creation of T.C.A. 16-2-518, fewer than 350,000 Americans were in prison. By the turn of the 21st century, that number ballooned to more than 2.3 million. That breaks down to about one of every 100 Americans being in jail. If you extend the figure to include people on probation or parole, the number drops to a shocking one in 31 Americans. More than 80 percent of the people accused of committing a crime qualify for court-appointed defense. Study after study has documented how excessive caseloads have compromised the constitutional right to counsel and clogged the judicial system. To quote former FBI Director William Sessions, America's public defense systems "should be a source of great embarrassment for all of us."

Mass-incarceration is expensive and that condition will only be exacerbated by eliminating the 75 percent rule. Tennessee spends more than $1 million a day to house the state's prisoners. A recent study from the Brennan Center for Justice at NYU shows that, in addition to being expensive, the United States has now imprisoned so many people that we've entered into a period of diminishing returns. Can there be any doubt that a deliberate weakening of Tennessee's public defender systems will result in more convictions and longer sentences?

Eliminating the 75 percent rule will also disproportionately impact the state's larger, urban defender systems, such as the one in Shelby County, which is among the nation's oldest. The local defender's office has a reputation for developing services that are more effective and less expensive than incarceration, such as the award-winning Jericho program, a model prison-diversion program that targets inmates with severe and persistent mental illness. The mentally ill are likely to be incarcerated two to five times longer than the average inmate, and have an average recidivism rate of 80 percent. The Jericho program has cut the repeat offender rate for the mentally ill in half.

Tennessee could reduce its incarceration and recidivism rate even further if, instead of embracing only the most retrograde policies, it looked to effective and cost-saving reforms enacted by neighboring states like Kentucky and Georgia. But that doesn't seem likely.

The legislature already sent a powerful — and pointless — message to poor people in Tennessee when it passed a law requiring citizens who need public assistance to undergo drug testing, a program that has now been proven to be a major waste of time and resources. Over the past six months, 16,000 Tennesseans have been drug-tested. The total number of those testing positive: 37.

And speaking of pointless, expensive legislation: Todd's bill revoking the 75 percent rule may well result in increased taxes, as financial responsibilities are shifted to meet needs that will not go away. This measure will end up costing Tennesseans more money without the perceived benefit of making anybody more secure.

Remember that time when Todd championed a good piece of legislation that helps to move Tennessee forward? Yeah, I didn't think so.

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