- Published: 27 June 2012
- Written by Bill Branham
In June of 2008, the National Legal Aid & Defender Association (NLADA) issued a report analyzing Michigan's indigent defense system, A Race to the Bottom: Speed and Savings Over Due Process: A Constitutional Crisis. (Download below, including Summary and Fact Sheet.) The report was a bombshell. Michigan's system does not achieve any of the American Bar Associations Ten Principles of a Public Defense Delivery System. (Michigan added it's own 11th Principle, available for download below.) The Michigan Public Defense Report Card is an excellent visual overview of the principles and our grade on each.
The Michigan Campaign for Justice is to be commended for their encouragement of the process that led to Governor Rick Snyder appointing the Michigan Advisory Commission on Indigent Defense. The Commission was ordered to "analyze existing data that is needed to assist policymakers in making decisions on the appropriate funding and staffing levels to ensure effective public criminal defense services." In other words, this is the beginning of a complete overhaul of Michigan's indigent defense system.
Or "lack of system". One of the problems is that each county has been free to devise its own system, creating a mismatched patchwork system of inconsistent programs. Today, the State of Michigan literally has no system of Public Defense. In Michigan, if you are charged with a crime, what county you are in makes a difference! The crux of the problem is in the following two points:
- First, it is the State of Michigan's responsibility to guarantee that "In accordance with the state's obligation under the Sixth and Fourteenth Amendments of the United States Constitution, a competent attorney shall be appointed to all people facing a potential loss of liberty in a criminal prosecution who cannot without substantial hardship afford private counsel."
- Second, historically Michigan has delegated this responsibility to counties and municipalities, not only for how the system works, but also for the funding. Today's climate does not make it practical for the state to pick up the tab for something which is currently funded by others.
The commission's recommendation is to create a permanent governing commission, which will be responsible for monitoring and requiring the localities to maintain a state-wide standard. The funding will still be local, however, it recommends two enhancements.
First, "The permanent commission should be empowered to provide indigent defense services directly with state resources should any local system fail to meet the minimum standards". Second, "Since ... the current trial level indigent defense is 100% locally funded, any new funding requirements should be fulfilled by the state." The two recommendations will help the less financial able localities to come up to the minimum standard and will allow for state-wide application of reforms that could not or would not be taken on individually by the localities.
Governor Rick Snyder responded positively. "I appreciate the commission for developing its recommendations to help overcome the decades-long challenges that have impeded Michigan's public defense system," Snyder said. "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."
We look forward to upcoming legislation introduced out of these recommendations. After decades of a sub-par defense system, we have an opportunity to see that the system is really changed. It is up to us as citizens to help our state representatives remain resolute and not allow the political process to compromise necessary changes. Improving the quality of public defense is not about siding with criminals or anti law-and-order. It is about fairness. How can a judge or prosecutor be proud of the system they serve, if they know that there are not the resources to provide an adequate defense? In other systems, including sports where there is a clear winner and loser just as there is in a trial, such conditions would be considered to be a "rigged match". Truth and justice take a back seat. The report correctly says in Recommendation #4, point 8, "Defense attorneys are equal partners in the criminal justice system. The defense function, as with all criminal justice functions, should be adequately funded so it can fulfill its particular role." The current situation was described by a friend of mine when he said, "They treat the defense counsel like they're the visiting team." Our system is supposed to produce justice and we can never settle for less. America bought into an adversarial system. So, for it to work, let's at least make sure there is a level playing field!