Lawmaker calls public defender system embarrassing

January 9, 2012
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State Rep. Tom McMillin recently told Michigan Radio that he plans to introduce legislation in the first half of this year that would change the state’s public defender system. McMillin said his upcoming bill will alter how defenders are trained and paid.

“(A) patchwork of 83 counties and systems inside of those systems just is an embarrassment. We need to really get a better handle to try to ensure justice,” said McMillin, R-Rochester Hills, whose legislation might precede the findings of a commission that was established last fall.

The embarrassment McMillin referred to has been chronicled for years. In 2008, the National Legal Aid & Defender Association and the State Bar of Michigan reported the state ranked 44th of the 50 states in funding for its public defender system. The study said the state spends only $7.35 per resident on the system, which is 38 percent less than the national per-capita average of $11.86 and much less, at $74 million, than the state spends on its $2 billion correctional system.

The report also noted Michigan is one of only seven states that have a county-based system, one that varies across the 83 counties.

In 2009, the American Bar Association and the State Bar of Michigan released a report card on the public defense delivery system in the state. The bars graded 11 key elements that comprise a successful system. The final report card contained one C, five D’s and five F’s.

A report issued in April by the American Civil Liberties Union, the ACLU of Michigan and the Michigan Campaign for Justice said the state’s public defense system is widely considered an embarrassment and costs state taxpayers more than $13 million in unnecessary incarceration costs, attorneys’ fees, court costs and compensation for wrongful imprisonment. The report also pointed out that same amount of money would educate 1,000 public school children in Michigan for a full year or provide 16,500 poor children with medical services for a year.

In October, Gov. Rick Snyder issued an executive order that established a commission that has been charged to come up with recommendations on how to improve legal representation to low-income criminal defendants and to make that representation consistent across the state. In announcing the Indigent Defense Advisory Commission, the governor said the quality of legal representation to the state’s poor varies at the county level.

“A core principle of our criminal justice system is to guarantee that an individual charged with a crime be entitled to legal representation, even if they are unable to hire private counsel. The commission will work to ensure that all criminal defendants receive effective assistance of counsel,” said Snyder.

The commission is scheduled to meet monthly through March and deliver its recommendations to the governor and state lawmakers by July 15.

“This commission is a significant step forward in guaranteeing that Michigan has a criminal-justice system that works for all and upholds core constitutional rights for Michigan’s citizens,” said Julie Fershtman, president of the State Bar of Michigan.

The Campaign for Justice, a statewide coalition of organizations and individuals that has advocated for reform to the public defender system, applauded the governor’s decision to create the commission and lauded him for recognizing that the system needs to be fixed.

“It is widely recognized in Michigan and across the United States that our public-defense system needs to improve,” said Peter Cunningham, executive director of the organization.

Shelli Weisberg, legislative director for the ACLU of Michigan, said her organization has a number of changes it hopes the committee will recommend next summer. One is that the defender system needs to be independent of the state’s judicial system so attorneys can be assigned cases without any possible bias arising from the bench. Judges currently make those assignments.

“It’s going to take a big discussion, and in the couple of years that we’ve been doing this, a discussion has really evolved. We have a system, and regardless of how different it is in each county, what is common in the system is the judges and the courts have control of the system. It’s not to say that there is bias, but there is no independence there, and there certainly is an appearance of bias,” said Weisberg, whose organization is part of the Campaign for Justice.

“That has to be cleared up. I think that was difficult for judges at first because it has obviously been their domain for all this time. But that discussion is evolving very nicely at the commission,” she added. The 2009 report card on the public defense system gave the system’s independence an F.

Weisberg also said the system needs to have a set of state standards and training requirements to ensure that the lawyers who represent indigent clients are properly trained in how to represent their clients.

“We also need a system that gives the defense attorneys the resources that they need to carry out their work,” she said. “Very often they don’t have the resources to hire private investigators, for instance, or different specialists in terms of testifying.” The report card also gave an F to the amount of resources available to public defenders.

Weisberg said that one of the biggest concerns of the state’s ACLU chapter is that the current standards are relative to which county the local public defender office is located in, as some are higher than others. But Weisberg noted that her organization isn’t certain whether the current county system should be totally abolished and replaced by a statewide system.

“But there has to be a place where the state has oversight and some control over making sure that each system is meeting its constitutional obligations,” she said.

The governor appointed 14 state lawmakers, legal professionals, government officials and members of the general public to the commission, after he received nominations from various groups across the state. 

James Fisher of Hastings, a former chief judge of the Barry County Trial Court and a past Barry County prosecuting attorney, was named committee chairman; he represents the general public on the commission. But Fisher is the only legal professional from West Michigan named by Snyder to the commission. And none of the four legislators on the panel, which includes McMillin, are from the region, either.

“I know they were looking at geographical representation, but I don’t think there has been any big concern about it,” said Weisberg. “I have to say that in my work with the commission so far through the introductory phases, the people that I work with are pretty pleased with the representation on the commission in terms of being fair.”

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