Fridays in Ottawa County’s courts -- when criminal defendants often are arraigned without legal representation -- are referred to as “McJustice Days.”
In Sault Ste. Marie, attorneys representing the poor have little time to prepare and wait in line to meet with their clients in the courthouse’s unisex bathroom.
In Wayne County, court-appointed attorneys haven’t received a raise in decades and say they often take on more cases than they can handle.
And in a report approved June 22, the Michigan Advisory Commission on Indigent Defense urged the Legislature and Gov. Rick Snyder to increase funding and implement statewide standards for the state’s system of providing attorneys for indigent criminal defendants -- a system that has been criticized as one of the worst in the country.
The panel advised that an additional $50 million per year is needed just to bring Michigan up to the national average for legal defense work.
Lawmakers should create a permanent commission and staff to set and enforce minimum standards, urged the commission, which was created by Snyder last October. The state also should assume part of the cost for court-appointed attorneys now borne entirely by the counties, the commission advised.
“I will review the recommendations and look forward to working with the Legislature to ensure that all criminal defendants, regardless of ability to pay, receive effective legal representation in our state," Snyder said in an official statement.
Indigent defense currently rests in the hands of the 83 counties, which has led to a wide variety of approaches. A few counties have public defender offices to represent the poor, others contract out indigent defense to law firms, while many rely on private attorneys appointed by judges.
“It’s a patchwork quilt of all different kinds of arrangements,” said James Fisher, former chief judge of the Barry County Circuit Court who led the commission. “The way lawyers are compensated and the rates of compensation vary widely across the state. The system as a whole has not been adequately funded.”
While some counties do a satisfactory job of providing attorneys for indigent defendants, others “do a very poor job of it,” Fisher said.
Under the microscope for years
A 2008 review commissioned by the Legislature found that Michigan ranked 44th among the 50 states for per-capita spending on indigent defense. The review also found Michigan was one of just seven states that left indigent defense funding for trials fully in the hands of counties. Michigan spent $7.35 per resident on indigent defense, or 38 percent less than the national average.
In its unanimously approved report, the governor's commission found that the state -- not the counties -- is constitutionally obligated to assure indigent defendants receive adequate representation. In many counties, the current system does not meet the American Bar Association’s “Ten Principles of a Public Defense Delivery System,” the commission stated.
It added that “the current delivery of indigent defense results in a public defense system that is too often subject to errors at the trial level, and, at its worst, results in a wrongful conviction. Michigan taxpayers are exposed to millions of dollars in unnecessary expense in these most egregious cases.” For example, the State Appellate Defender's Office said that between 2003 and 2007, it caught sentencing errors missed at the trial (county) level that would have meant nearly $70 million in additional prison costs.
Snyder charged the 14-member commission of defense lawyers, prosecutors, judges, legislators and others with recommending how to improve the state’s indigent defense system.
“On balance, the testimony presented to the commission from Michigan indigent defense practitioners, judges and prosecutors (including those defending their own systems) confirmed that the ABA Ten Principles are not met in Michigan,” the report stated.
County practices vary widely
In some counties, including Wayne, attorneys are appointed by judges to represent indigent defendants. Wayne County hasn’t increased the rates it pays court-appointed lawyers for 30 years, according to the Wayne County Criminal Defense Bar Association.
“The reality in Wayne County is lawyers have trouble making ends meet with what they are paid,” said Frank Eaman, one of the attorneys in a class-action lawsuit that claims the state’s current indigent defense system is unconstitutional. “They try to make up for it with volume.”
As a result, many lawyers are so overworked that they are unable to spend enough time on any case to adequately defend their clients, he said.
Court-appointed attorneys often lack the training and experience to handle complex criminal cases, the commission found, and most county systems do not evaluate their performance or require them to undergo continuing legal education.
The report estimated Michigan’s counties spend a combined $74 million a year on indigent defense. While the commission did not recommend a specific amount, it estimated it would cost an additional $50 million a year to bring Michigan up to the national per capita average. (For context, $50 million is about half of what the state will spend on the Legislature in the current budget year, and works out to about $5 for every man, woman and child in the state.)
Michigan should continue delivering indigent defense at the local level, with the counties and state sharing the cost, the panel advised. Each county should be required to maintain at least the average it has spent on indigent defense for the past three years adjusted for inflation, it recommended. The Legislature should appropriate enough money each year to bring funding up to minimum standards, the commission said.
The Michigan Association of Counties does not oppose the commission’s recommendations, but has some reservations, said Ben Bodkin, the association’s director of legislative affairs.
“The problem that we have is if there are new requirements that come out, those ought to be paid for by the state,” he said, noting that the Legislature has a history of breaking promises for additional funding. Any new requirements should come with a guarantee that “if the Legislature doesn’t fund it, then the requirements don’t have to be met,” he said.
Various organizations and individuals have raised concerns about Michigan’s indigent defense system for years, warning it is so inadequate that it likely violates the U.S. Constitution’s Sixth Amendment, which assures all criminal defendants assistance of counsel, and 14th Amendment, which guarantees equal protection under the law.
Despite such warnings, the Legislature has failed to improve Michigan’s indigent defense system, which prompted Snyder to create the Indigent Defense Advisory Commission.
Former Chippewa County public defender Julie Beck told the commission that the Chippewa County Commission fired her after she warned that it was not spending enough for her office to adequately defend its clients. The two attorneys in her office handled 1,009 cases in 2010 -- far above national standards -- and often waited in line to meet with clients in the courthouse’s unisex bathroom, she testified.
“This issue really strikes at the heart of what it means to be a democratic society,” said Peter Cunningham, executive director of the Michigan Campaign for Justice, a nonprofit group formed to promote a fair public defense system. “Government can’t unfairly take away your freedom.”
He added, “It’s easy to get everyone in the room to agree there are problems withMichigan’s indigent defense. The stumbling block has always been, how do we pay for it? To me, the question is, are we going to ignore the constitutional rights because we don’t have the money?”
This is one issue that unites conservatives and liberals, said Rep. Tom McMillin, R-Rochester Hills and a member of the governor’s panel. He is preparing legislation to implement the commission’s recommendations. McMillin stopped short of predicting the Legislature will go along with the recommendations, but he said the issue “transcends party lines, I hope.”
“When we’re talking about taking away a person’s liberty, that’s a pretty high priority,” McMillin said. “As a conservative, I understand this is one of the things that we should get right.”
A class-action lawsuit -- Duncan v. State of Michigan -- now before the state Court of Appeals claims the current system is so inadequate that it violates the constitutional rights of indigent defendants. If the state loses that case, it also could lose control over its indigent defense system.
“The best way to address the issue,” said Fisher, the commission’s chairman, “is for the Legislature to step up to the plate and adopt the commission’s recommendations.”
Pat Shellenbarger is a freelance writer based in West Michigan. He previously was a reporter and editor at the Detroit News, the St. Petersburg Times and the Grand Rapids Press.