ASKED & ANSWERED: James H. Fisher on indigent defense

By Steve Thorpe Recognizing that the existing system of providing legal assistance to indigent clients is deeply flawed, Gov. Rick Snyder appointed a group in October 2011 to examine the possibility of "(reforming) our indigent defense system in order to protect our communities, our tax dollars and the constitutional rights of all Michiganders." Judge James H. Fisher chaired the Michigan Advisory Commission on Indigent Defense and Gov. Snyder announced its recommendations on Friday, June 22. Fisher recently retired after serving as Barry County Circuit Court judge since 1995. He was a prosecutor in the 1970s and in private practice from 1980 to 1995. Thorpe: When was the current system created? Fisher: I hesitate to refer to the current state of affairs as a "system," since indigent defense in Michigan has been left up to each county. The result has been different plans, compensation methods, and conditions in each jurisdiction. I'm not sure how this system developed, but I've been a lawyer for over 35 years, and that's the way it has always been done. The result is that we do not have a level playing field across the state. Some local courts and counties do a very good job, but others do not. Funding varies greatly from one county to another, and there are no uniform standards that specify what a local indigent defense system should look like. Thorpe: What are the biggest flaws of the existing system? Fisher: The "system" we have has been described by many as a patchwork quilt across the state, with no guidance to individual courts or counties regarding reasonable compensation, resources, experience, competence, training, etc. The financial responsibility of virtually every other aspect of our court system has been a shared responsibility between the state and local units of government, but the state has never accepted any responsibility for indigent defense. Since the local units have borne the entire cost, the system has not received the financial support it needs. We currently rank 44th in spending on indigent defense out of the 50 states, with per capita funding nearly 40 percent below the national average. Only a handful of our counties support indigent defense at or above the national average. Thorpe: Michigan ranks low in per defendant spending on indigent defense. How did we arrive at that point? Fisher: Our main recommendation calls for formation of a permanent, independent Indigent Defense Commission, housed within the judicial branch. It would include a broad base of stakeholders in the system, and it would be charged with adopting and enforcing minimum standards for local indigent defense systems. The ABA's 10 Principles of Indigent Defense would guide the commission in setting the standards, but the delivery of indigent defense services would remain a local function, and local courts would have the flexibility to determine how best to meet those standards within their communities. We also recommended that added resources for indigent defense should be the responsibility of the state. We pointed out that an additional $50,000,000 would be required to raise our state to the national average in per capita funding, but we did not recommend any specific level of added funding. Thorpe: Would you give us some highlights of your panel's recommendations? Fisher: There was broad consensus for our findings and recommendations, and I was very pleased that we were able to complete our work ahead of schedule. We had a very cooperative, hard working and dedicated group of commissioners, and I was impressed by the fact that such a diverse group recognized and respected the 6th Amendment right to counsel as a core value of our justice system. I thought that chairing the commission would be a real headache, but it turned out to be a very gratifying experience, thanks to my fellow commissioners. I would like to recognize the yeoman's job done by Judge Thomas Boyd from Ingham County, who chaired the subcommittee, which produced the bulk of our report. He and his subcommittee spent many hours working on the details of the report. The other reason that we finished ahead of our deadline was the fact that we developed a sound work plan, and we stuck to it. Our staff person, Jean Kordenbrock, was very instrumental in helping us get our work done ahead of schedule. Thorpe: How difficult will it be to implement the panel's recommendations? Fisher: That remains to be seen. There is broad support for our recommendations, and our legislative members have already been at work drafting the legislation needed to implement the commission's recommendations, and examining potential funding sources. Our recommendations satisfy the governor's conditions that they be cost effective and responsive to local conditions, so I am hopeful that the commission will be established before the end of the year. Published: Mon, Jul 23, 2012

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