Michigan Campaign for Justice Group responds to Powell's critique of indigent defense bill

By Elizabeth Arnovits

President, Michigan Campaign For Justice

For me and many others across the state, December 9, 2009, was a day that was years in the making. After decades of work, research, collaboration and advocacy by people from across the state, including the legal, faith, criminal justice and civil rights communities, a bipartisan plan to fix our state's failing public defense system was finally introduced in the Michigan Legislature.

The January 7, 2010, edition of the Legal News featured a lengthy commentary by Washtenaw County's Chief Public Defender, Lloyd Powell, regarding House Bill 5676. Mr. Powell brings decades of public service to the conversation regarding public defense. His opinion piece raises a couple issues regarding the legislation that I hope to answer below. And, his commentary also points to how far Michigan has come and how close we now stand to making public defense reform a reality. To understand the issues in context, it is important to review where we came from and what we hope to accomplish.

What is the problem with public defense in Michigan?

In June of 2008, at the request of the Michigan Legislature, and working with the State Bar of Michigan, the National Legal Aid and Defenders Association completed an intensive year - long report on the public defense system in ten representative Michigan counties. The devastating findings from that report were then summarized in a Michigan Public Defense Report Card.

The report and the report card paint a bleak picture of Michigan's performance in meeting its constitutional responsibilities as outlined in the Sixth Amendment of the Constitution. Of the Eleven Principles of a Public Defense Delivery System, established by the State Bar of Michigan (see sidebar, "What are the 11 Principles?), Michigan received a grade of "F" in five areas, a "D" in five other areas and a "C" in the one remaining area. The full report card, with detailed descriptions of each principle and grade, can be found at www.mijustice.org.

This report card, like the NLADA report itself, reveals a system in such crisis that it cannot meet widely recognized national standards for an effective public defense delivery system. This was only the latest of a series of national reports that found Michigan's public defense system to be at the bottom of the barrel.

As a result, our public defense system in Michigan overall is:

* Failing taxpayers through inefficiencies, duplicative bureaucracies, costly lawsuits and higher corrections costs due to errors and mistakes. With staggering caseloads, little training and few resources, defense attorneys are too often hamstrung in identifying underlying problems such as addictions, mental health or learning disabilities in adults and children and advocate for more appropriate and cost-effective sanctions, such as substance abuse treatment, drug courts, mental health or other appropriate programs.

* Failing the accused... the adults and children of limited means who have the right under the 6th amendment of the Constitution to effective assistance of competent defense representation, and

* Failing to protect public safety by not catching mistakes that put innocent people behind bars and allow guilty and, sometimes, dangerous, people, to go free.

County governments in the best of times are ill equipped to shoulder the State's constitutional burden. The current budget crisis is contributing to a rapid deterioration in a system that has been repeatedly tagged as one of the worst in the nation. In fact, Michigan is just one of seven states that forces counties to fund public defense services.

While Mr. Powell is proud of the public defense services provided in Washtenaw County, Michigan's current system has no way of ensuring a consistent level of service from one county to the next. And clearly, just as the quality of justice you receive should not be determined by the size of your bank account, it should also not be determined by which side of a county line you live on.

We also must have a statewide system that implements and enforces standards such as workload controls, training, accountability and other quality assurance standards.

The Eleven Principles, taken together, create the conditions for putting each criminal case and delinquency proceeding to the adversarial test that is the foundation of our traditional American criminal justice system. Even the most outstanding defense attorney cannot possibly deliver effective defense representation with staggering caseloads or without access to resources like expert witnesses and investigators.

How do we fix this?

Faced with the bleak facts outlined above, the Michigan Campaign for Justice, backed-up not only by studies and testimonials, but also by the U.S. Supreme Court ruling, Gideon v. Wainwright and its progeny, proposes that Michigan's public defense system must be adequately funded by the state, not our 83 counties, and that defense services across the state be based on and guided by statewide, nationally-recognized standards.

The Campaign for Justice

The Michigan Campaign for Justice is a nonpartisan organization seeking reform of our failing public defense delivery system (see page 4, "What is the Campaign for Justice coalition?"). Last winter, the Campaign was publically introduced as a large and growing coalition of groups and individuals committed to addressing, through legislation, the problems in Michigan's public defense system. Together, we are seeking reform on behalf of Michigan taxpayers, on behalf of those seeking safer communities and -- most importantly-- on behalf of the adults and children who have a constitutional right to effective defense representation when they are accused of a crime or face delinquency proceedings, even if they cannot afford to hire a lawyer.

In the months since the Campaign's launch, our effort has grown, diversified to include groups from all spots along the political spectrum and lawmakers of both parties and established momentum toward reforming public defense in Michigan. The Campaign convened a broad based legislative work group to provide legislators with model language, as they crafted their solution to the ongoing crisis in public defense.

Developing the proposals

For those familiar with past efforts to reform public defense in Michigan, you may know this legislation and its components have been years in the making. The bill introduced by Reps. Constan and Amash (see sidebar, "What does HB 5676 do?") reflects the debates, compromises, research and expertise of many people from not only Michigan, but also across the country.

The Campaign and its partners, including the State Bar of Michigan, have spent much of the last two years examining the best practices of other states. We have looked at the differences and similarities to Michigan from statewide systems in places like Minnesota and Montana. We've invited experts from across the country to weigh in on recommended approaches. And, most importantly, we have actively invited and encouraged the participation of local attorneys, judges and legal experts from right here in Michigan in a discussion about what a model bill might look like. As a campaign, we were grateful to Washtenaw County's long-time public defender for being a part of these discussions over many months. Although we differ on some issues, Mr. Powell's insights were valuable as we worked to offer lawmakers a starting point, and many of his suggestions were incorporated in the bill.

Then, even after the work done in preparing a draft bill, Reps. Constan and Amash led a legislative evaluation and examination of the issue. They held public hearings and meetings to ensure the legislation they introduced met the critical responsibilities outlined in our Constitution.

In mid-December, the State House Judiciary Committee held its first public hearing on the legislation. The response was overwhelmingly positive to the work the lawmakers had done and additional hearings are planned in the weeks to come as this legislation begins its way through the legislative process.

Local Control and Administration

In his commentary in the recent edition of the Legal News, Washtenaw's Mr. Powell did raise two fundamental concerns regarding this reform effort.

First, it should be noted that, as mentioned above, Mr. Powell has been an active contributor to the discussions that went into developing recommendations for HB 5676 and that he "supports the goals of HB 5676." That's an important starting point because it makes clear there is much more on which we agree than disagree. This kind of consensus in mission is important for all successful legislative efforts.

Secondly, Mr. Powell raises concerns regarding the potential cost of establishing and administering a statewide system of public defense, and clearly, with state and local governments facing difficult budget challenges, cost effectiveness and efficiency is very import.

Certainly, these are critical issues and finding funding solutions is on the agenda for the bill sponsors and supporters.

That being said, the cost figures used in Mr. Powell's commentary and the corresponding organization charts he published are his own and are not based on any information or research from the Legislature or the drafters of HB 5676.

In fact, the legislation very clearly charges the to-be created Public Defense Commission with developing an organization for administering a statewide system. It is particularly misleading to imply that the entire cost of the proposed reform is the proposed administrative structure - which will actually be a very small percentage of the cost.

Now, without a doubt, any proposal with plans to increase compensation for defense attorneys, provide added resources to defense counsel, offer training and oversight brings with it an increased investment on the part of the state, but ultimately, that is a fundamental part of this entire effort. Michigan's system of public defense has been underfunded for too long, putting clients at risk and attorneys behind the 8-ball.

Fixing the system means funding the system. The Campaign and state lawmakers have their eyes wide open in regard to the challenges of funding this reform and are working now to fine-tune a cost structure and methods for supporting it. One thing is clear however; the numbers and charts offered by Mr. Powell are simply not accurate and therefore not constructive for the current discussion. In addition, the statements regarding "armies of bureaucrats" have no factual basis, in either the bill language or the intent of the reform.

Third, Mr. Powell raises the question of "local control". Unfortunately for Michigan, our county-based public defense system is currently not one based on local control, but instead, too often, local chaos. This is not to criticize any one county or another. Instead, it is a commentary on the fact that we have 83 counties and 83 different methods for proving public defense - and in reality, many more as each court and each judge may handle this important constitutional responsibility differently in a particular county.

It is not an efficient system and, as national reports and personal tragedies have shown, it is not an effective, fair or safe approach. This is a statewide problem, and must be addressed by a statewide reform.

The Constitution rests the responsibility of public defense with the state and that is the foundation on which the reform legislation is built. However, the legislation certainly makes accommodation for local public defense efforts that meet the standards outlined in the Eleven Principles.

As the commission identifies regions and local providers of defense counsel, the new office of public defense would be fully authorized to contract with a local county public defender office to provide local services, if that office meets the required constitutional guidelines.

It's all based on standards, meeting those standards and assuring accountability for the taxpayer's dollar.

The process has just begun

As my first sentence noted, the Michigan Public Defense Act was introduced just over one month ago. It's life as a piece of legislation is still young. I encourage you to read more about the legislation and the campaign at www.mijustice.org.

If you have questions or concerns, contact us. In the weeks, months and even years ahead, much time, effort and input will be required to fine tune a bill that can win the support of the Legislature, earn a signature from the Governor and be implemented into practice.

The conversation is not over; it is only just getting started. That said, at no time has reform been more ripe for Michigan to achieve.

The list of supporters of this effort is long and growing. The input and advice is expert.

And, the determination of the partners involved is as strong as it's ever been to finally fix Michigan's public defense system.

Published: Thu, Jan 21, 2010

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