House Bill 5676 --Chief Public Defender here questions proposed indigent defense legislation

Editor's Note: The following was submitted by Lloyd E. Powell concerning House Bill 5676 to create a Public Defense Act in Michigan.

By Lloyd E. Powell

Washtenaw County Chief Publc Defender

As a precursor to suing Michigan (population 10 million) in 2006, the ACLU sued Montana (population of 958,000) in 2002 resulting in that state voluntarily agreeing in 2005 to establish a new oligarchic type governing public defense bureaucracy comprised of 11 regional branch offices headed by regional directors with the title "Deputy Public Defender," accountable only to a state director with the title "Chief Public Defender," with enormous delegated empowerment from a small, unpaid, part-time, 11-member commission, with totalistic control of all public defense in all counties and courts within that state, beginning in 2006.

A study of that new system and its successes and problems was completed in August of this year (2009) by the Bureau of Justice Assistance (BJA) Project to provide technical assistance to Criminal Courts throughout our Country.

That report may be conveniently viewed at the links below:

Summary:

http://www.billingsgazette.com/news/state-and-regional/montana/article_db357d6a-7e35-11de-8794-001cc4c03286.html

Full: http://www.billingsgazette.com/article_f6522c2e-7eb7-11de-855c-001cc4c002e0.html

After the bonanza of success so readily achieved in Montana beyond the most favorable expectations, the ACLU brought suit against Michigan in 2006 with the hope of accomplishing the same here; and that is why HB 5676 is now before us.

This bill may be viewed at http://www.legislature.mi.gov/

Figure A (see page 5) is an organizational chart that we have prepared that depicts what our state-wide organization would look like with a Public Defense Act as currently advocated by HB 5676 to help readers achieve a more clear understanding of where this would take us with a new middle level of bureaucracy of 4 to 57 "regional branch offices" that would be needed in order to seize local control from all of our existing counties and judicial districts.

Figure B (see page 5) depicts what it would look if we left local, trial level, public defense control with the counties and municipalities, as currently exists, and also left SADO and MAACS with their own separate commissions as currently exists, in order to accomplish the very same end of improving public defense state-wide whereby it achieves the same quality of meeting all of the principles adopted by the ABA and SBM, as the Washtenaw County Office of Public Defender has accomplished for the past 38 years of existence, and by doing so save over $200 million initially and more than a billion over the near future, on the premise that while we must always idealistically seek to achieve top quality at all times, we must also simultaneously and realistically be concerned with being cost effective because it is simply unwise not to be.

Thus that is why simply improving our existing state-wide system to uniformly meet the quality standards required (as we suggest at the organization chart that we have prepared as Figure B) is what we believe to be the wisest course to follow at this time because it would be more operationally effective, efficient, ethical and realistically economical.

Figure B is also in agreement with the course of action originally recommended in 2002 and before that by the actual "grass roots" organizations that always included everyone, operated openly as regards any Legislative Working Groups (LWG), and that preceded our current 501, c (3) Michigan Campaign for Justice (MCJ) organization, which appears to have appropriated the acronym of the former grass roots Michigan Coalition for Justice (MCJ) which preceded it by many years along with many other grass root organizations that always functioned independently without giving the appearance of being an extension primarily of local CDAM, SADO and ACLU leadership.

The original grass root organizations identified above produced the excellent "Model Plan for Public Defense Services in Michigan" of October 2002, developed by The Task Force on Improving Public Defense Services in Michigan, a project of the Michigan Council on Crime and Delinquency (MCCD) and funded by The Standing Committee on Legal Aid and Indigent Defense of the ABA, The Open Society Institute; and local United Ways, which this Office and SADO participated in putting together along with a very knowledgeable, objective and diverse group of professionals to include the Michigan Association of Counties and PAAM.

Immediately below is a convenient link to this reader friendly Model Plan that very wisely meets all of the ABA and SBM Principles of what a Public Defense system should be and which we all fully support.

The link to this excellent report is immediately below and is in conformance with the Organization Chart in Figure B:

http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/mi-modelplan.pdf

The ACLU as an apparent strategy also collaborated with the National Legal Aid and Defenders Association (NLADA) and the State Appellate Defenders Office (SADO) in conducting a study of public defense in Montana similar to the one completed for Michigan which may be conveniently viewed at the link below:

http://www.michbar.org/publicpolicy/pdfs/indigentdefense_report.pdf)

WHAT WE LIKE ABOUT HB 5676 AND WHY

This Office supports the goal of HB 5676 to have uniformly throughout all counties and judicial districts in our state a Criminals Justice System (CJS) that provides quality public defense that minimally meets the principles adopted by the American Bar Association and the State Bar of Michigan, as for example, continues to be achieved consistently by the Washtenaw County Office of Public Defender, the only full service public defense organization of its kind that has ever existed in Michigan as an integral part of County Government with the respected stature of the other major components of the local CJS, namely: the Sheriff/Police, Prosecutor, Public Defender, County Judges and Corrections, all elected or appointed officials who are accountable to the residents of the county that is being served in our Home Rule State of Michigan.

Moreover, it is our perception that an overwhelming majority of people readily agree that this should be done and thus that is and never has been the real issue.

SOME CHANGES TO HB 5676 THAT WE HOPE CAN BE MADE FORTHWITH

The real issue we submit is the seemingly very unwise agenda of HB 5676 to let a small clique of "power and control" driven attorneys seize control of all public defense in Michigan through the primary means of "Regional Branch Offices " that would take away all local control from Counties and Municipalities where the trial level Criminal Justice System is always implemented.

Also, should you wonder why HB 5676 leaves the "Appellate Bureau" alone while concentrating primarily on only the "Trial Bureau", is probably because Appellate attorneys conceived the idea and wrote the script to take local control away from Counties and Municipalities served by the trial level CJS.

Thus while we continue to support HB 5676, we do so with the hope that necessary changes will be made whereby a course of action is adopted that is truly in the best interest of our Home Rule State of Michigan, while avoiding being misled into believing that it is essential that we try to emulate Montana by establishing a similar type of totalitarian public defense oligarchy to satisfy a few "power driven" attorneys, enamored with a rationalization that they, and their cohorts, alone, must be in complete control in order to ensure that their vision of the "world order" as regards trial level public defense, always prevails. Thus that is why any ostensibly ruling Public Defense Commission should be large enough and composed of sufficient diverse representation to prevent it from being dominated from the outset by the influence of these same "power and control" driven individuals as the current small nine member Commission envisioned by HB 5676 would unwisely permit.

At this time of budgetary woes at all levels of government, that is also why we believe that the wisest course of action to follow is to simply take the lay of the land as it presently exists with public defense in our 57 Judicial Districts and 83 Counties (usually one and the same except where several sparsely populated rural counties are grouped into one judicial district) and improve upon it wherever needed because the primary reason why all of our State is not like Washtenaw County is simply because of a lack of financial wherewithal - and not because local government cannot be trusted to do what is right and thus must be supplanted by a small core of intellectual elite.

Thus it would be much more cost effective for the State to simply contract with local governments, non-profit and private groups and individuals, to uniformly meet the quality standards for public defense as adopted by the ABA and SBM as a condition for receiving either full or partial support from the State, without trying to take away local control by means of establishing expensive "Power and Control" middle levels of unneeded bureaucracy for that specific purpose with little or no real concern for cost effectiveness.

Also, the need for "Independence from the Judiciary" as required by Principle No. 1 is quite easily achieved by simply providing for local Judges to make all indigent appointments to the executive branch of local government to in turn be handled by the service mode of delivery that a County or Municipality should be free to choose.

This of course may be zealously opposed by the same "power driven" small clique of attorneys who (again on information and belief) initially conceived all of this "region branch office hogwash for both Montana and Michigan in order to gain absolute control. And of course there is always the incentive for those who understandably hope that any new standing armies of middle level bureaucracies will provide them with an opportunity for good state government positions right in the communities where they already reside - especially our Ann Arbor and Washtenaw County area.

SOME MORE AREAS WHERE WE SPECIFICALLY DISAGREE WITH THE CURRENT HB 5676

AND WHY

We respectfully disagree with the current composition of the proposed Commission and recommend that it be increased to at least 19 members or more by adding two (2) members from the Michigan Association of Counties (MAC), two (2) members from the Michigan Municipal League (MML), two (2) members from the Michigan Township League (MTL), two (2) members from the NAACP, two (2) members from organizations such as the Huron Valley Association of Black Social Workers and two (2) members such as the Washtenaw County Association of Black Employees (BEAWCG).

We recommend the above to prevent the Public Defense Commission at the State level from being over stacked with private practitioners who might never view favorably the establishment of public defender offices in spite of the fact that this is a nation - wide favored mode of public defense service delivery found historically to be most effective, efficient and economical for quality service.

And since CDAM membership is understandably focused on improving work opportunities for private practitioners as opposed to the use of Non - Profit and County Offices of Public Defender, it could be a conflict of interest for CDAM to have any members on the Commission with the authority to make recommendations toward that end.

The reason for our concern is because the current combined four appointees to be selected by CDAM and the SBM, assuming that the latter will most likely also come from CDAM.

Thus to avoid the reality of that kind of conflict of interest influence situation developing is another reason why any future Commission should be much larger and diverse in membership whereby the communities to be served at the trial level (i.e. the counties, municipalities and townships) and the minority group disproportionately impacted by the CJS currently (i.e. African Americans) are better represented.

We are also concerned that a small Commission from the outset will be unduly influenced by either the present or the new SADO if it is subsumed as expected under a very powerful new Appellate Bureau.

We also continue to object to HB 5676 trying to force upon our Home Rule State of Michigan the still novel and unproven "region" mode of public defense delivery system being used by Montana since 2006 (after taking a year to set it up and which continues to be problem plagued in so many ways), rather than to let the Commission carefully chose what combination of options are best for our state which is 10 times larger than sparsely populated Montana and twice the size of Minnesota, also problem plagued after 23 years of existence but which wisely uses "Judicial Districts" rather than the oligarchic "Region" concept.

We believe that it is not in the best interest of our Home Rule State to establish an expensive and unneeded middle level of oligarchic bureaucracy, comprised of standing armies of "region branch offices," as a public defense delivery system where "autocratic control" is vested in a few "power driven" attorney elites, accountable for life in reality only to themselves," for the obvious goal of taking local control away from the counties, municipalities and townships that are served and where the trial level CJS is implemented daily.

A consequence of the above would be that of all of our major components of the local "trial level" criminal justice system (CJS) (i.e. the Police, Prosecution, Public Defense, Courts and Corrections), the only one that would then NOT be accountable to the local community served would be the "public defense" component. Our 38 year old Washtenaw County Office of Public Defender is a living testimonial that quality public defense can be delivered that minimally meets all of the principles of the American Bar Association and the State Bar of Michigan, including independence from the Judiciary without going to the expensive and unneeded extreme of establishing standing armies of new state bureaucracies called "Region Branch Offices," ostensibly as the only way to have state oversight, when everyone knows that to be inaccurate.

Indeed, a central office at the state level can effectively monitor and enforce uniform standards for quality public defense that meet all of the ABA and SBM Principles, as a contractual condition for continuing funding assistance, by cost effectively using modern electronic technology bolstered by occasional investigative field visits as needed, from a relatively inexpensive desk at the state level, and still respect the right of local government to continue to hold all major components of their trial level CJS (i.e. Police, Sheriff, Prosecutor, Judges, Corrections and Public Defense) accountable to the local communities served in our home rule state.

HB 5676 also does not address the fact that when Montana unwisely created their Public Defense Act, they had to take revenue sharing public safety and justice funds away from counties and municipalities in order to help pay for their new middle level of bureaucracy called "Region Branch Offices".

The failure of HB 5676 to adequately address the enormous costs of establishing these wholly unneeded standing armies of expensive "region branch offices" that are really only designed for the purpose of unnecessarily taking away local control from counties and municipalities is particularly disturbing to this Office of County Government that has always sought to successfully set the example for delivering top quality and doing so with the utmost cost effectiveness. Indeed, when you extrapolate what is happening to Montana, we're easily looking at $ 200 million initially with billions to follow over time - all unnecessary and - all to satisfy a handful of "power and control" driven attorneys.

HB 5676 should also refrain from having both the Appellate Public Defense and Trial Public Defense under one Commission because of the expensive conflicts of interest situation that this unethical move unnecessarily creates as Montana has belatedly discovered and is attempting to rectify at great unnecessary costs. And that is but one important reason why it would be better to leave SADO and MAACS as they are with their own separate Commissions in place and not revoke the State Act that created them - thereby also saving many millions by doing so.

Most importantly, the current House Bill 5676 does not provide for Juvenile Neglect and Abuse cases that are too often interrelated with Juvenile Delinquency Cases and instead continues to leave that burden fully on the counties, on the premise that it would be too costly for the State to help these kids and therefore this burden should continue to be left solely on the counties.

We submit that this would be a serious mistake to throw these kids under the bus.

The establishment of extremely expensive and wholly unneeded middle levels of bureaucracy with expensive standing armies of "Regional Offices headed by omnipotent Regional Directors who will be accountable to only a single person in the capital with the title "Chief Public Defender," who can be expected to be preoccupied most of the time seeking funds for the state-wide system whatever the source, to whom all Judges will be compelled to appoint all indigent cases to, ostensibly as the only means of achieving Principle No. 1 (Independence from the Judiciary) when the Washtenaw County Office of Public Defender is a living testimonial that this is not true, would accomplish, by legislative legerdemain, a coup d'état takeover of this Office as currently created and appointed by the Washtenaw County Board of Commissioners, notwithstanding the language belatedly put in HB 5676 that gives the appearance of providing the possibility to "grandfather" in this Office as has been done in other states.

Regional Offices headed by powerful Regional Directors accountable only to a single person in Lansing with the title "Chief Public Defender," as a power grabbing means of preventing the continuation a/o future establishment elsewhere of extremely effective, efficient, economical and ethical Offices of Public Defender that are an integral part of the legislative/executive branch of County Government as is evidenced by the success of the Washtenaw County Office of Public Defenders for the past 38 years, is illogically contrary to Principle No. 2 (i.e. the freedom for county government to establish local County Offices of Public Defender when they desire to do so).

Thus It is unwise to attempt to force upon our Home Rule State of Michigan the still novel and unproven "region" mode of public defense delivery system being used by Montana since 2006 (after taking a year to set it up and which continues to be problem plagued in so many ways), rather than to let the Commission carefully choose what combination of options are best for our state, which is 10 times larger than sparsely populated Montana and twice the size of Minnesota, also problem plagued after 23 years of existence but which at least chose "Judicial Districts" rather than the oligarchic "region" concept apparently conceived for both Montana and Michigan by the same small and well meaning group of "power and control" attorneys.

We also object to any efforts to mislead the public into believing that the "region" mode of service delivery is " essential" when everyone knows that it is only one of many options to choose from and in our considered judgment the worst one possible because in addition to taking away local control, it also prevents or deters the future establishment of County Offices of Public Defender like the one we have in Washtenaw County.

It also prevents the effective accomplishment of principle No. 2 and No. 11 (Advocating and partnering with community to improve the local CJS) See the link below to verify the different cost effective system that exist throughout our 50 states.

Statewide Indigent Defense Systems: 2005, Spangenberg Group for ABA , as regards the many "public defense systems that exist throughout our 50 states:

http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statewideinddefsystems2005.pdf

Also:

http://public.findlaw.com/library/state-public-defenders(3).html

We also believe that appropriating the title "Chief Public Defender" for the State Director of Public Defense, as was also done for Montana and is proposed in-turn for Michigan, only creates the illusion that these "power and control" regional branch offices, to be headed by powerful regional directors with the misleading title "Deputy Public Defender" are true trial level Offices of Public Defender as has existed in Washtenaw County for the past 38 years when they are in reality only artificial mechanisms created to take power and control away from county and municipal governments, when it comes to public defense, and instead to place it under the control of a small clique of criminal defense attorneys.

Thus we recommend that a more appropriate title would be "Executive Director, State Office of Public Defense" or "Michigan Public Defense CEO."

However, we maintain that the very idea of having unnecessary and expensive "regional branch offices" should be abandoned ASAP.

It continues to be the perception of this Office that there has been always wide public support to have our state help our 83 counties and 57 judicial districts with public defense costs whereby all of the interrelated major components of our Criminal Justice System (i.e., the police, prosecutor, defense, courts and corrections) are appropriately balanced in stature and resources because that is the best way to achieve justice within the unique characteristics of each community and jurisdiction served, and Washtenaw County has been a shining example of that for the past 38 years.

Also, since almost all public defense in our state has been always handled by private attorneys, either in small groups or as solo practitioners, that system is likely to continue as it does in a majority of places with state-wide public defense systems and there is no reason why it should not continue that way in Michigan wherever local government determines that to be the best course of action to follow to meet the unique characteristics of their particular communities throughout our home rule state.

So, while we enthusiastically support having the State fund or partially fund public defense, establish appropriate quality standards (i.e. the 11 Principles) to be met and to provide the necessary oversight for this to be accomplished uniformly throughout all counties and judicial districts in Michigan, we respectfully disagree (hopefully without being disagreeable) that County Governments must be made powerless to select the mode of public defense delivery system most suitable for them and to be able to select and hold accountable the Officials whom they choose to elect or appoint (i.e. Sheriff, Prosecutor, Judges, Police, Public Defender, Correction Officials) to serve them.

Published: Thu, Jan 7, 2010

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