Indigent public defense bill 5676 debate concluded

Editor's Note: The following was written by Washtenaw County Public Defender Lloyd Powell in response to opposing viewpoints printed in last week's Legal News.

By Lloyd E. Powell

Chief Public Defender

Our U.S. Supreme Court has held that the Sixth Amendment right to appointed counsel applies to all indigent defendants in criminal cases as a fundamental right necessary to ensure a fair trial as part of our human rights of life and liberty.

It has also been held that this fundamental right extends to all state courts under the due process and equal protection clauses of the Fourteenth Amendment, thus placing an obligation on state and/or local governments to furnish indigent defendants with counsel in criminal trials.

However, the U.S. Supreme Court has never ruled that the central government of a state must fund and administer public defense rather than leaving that burden completely or partially upon local governments at the county, municipal and township levels.

Thus that is probably why 13 of our states (including Michigan) still provide no assistance whatsoever to local governments for trial level public defense.

Those states are: Alabama, Arizona, Maine, New York, Pennsylvania, South Dakota, Utah, California, Illinois, Idaho, Michigan, Mississippi, and Washington.

However, California, Illinois, Idaho, Mississippi and Washington, and our own state of Michigan, do provide some support for their appellate public defense process, as exemplified in Michigan by support of the appellate level of public defense since establishment of our State Appellate Defender Office (SADO) by state law in 1969, enabling it to become operational in 1972.

However, Michigan has never provided any support whatsoever to help local governments at the county, municipal and township levels to fund trial level public defense and that is why the ACLU sued our state in 2006 resulting in HB 5676 becoming a work in process for our collective consideration.

See link below:

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

The Need to Enforce

Uniform Standards

Throughout the State

It is our perception that most people readily agree that we need to have uniformly throughout all counties and judicial districts in our state, a Criminal 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.

Our 38-year-old Washtenaw County Office of Public Defender, is a perfect example as it is the only full service public defense organization of its kind that has ever existed in Michigan.

It is 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.

Indeed, that is the overarching public defense concept contained in the current HB 5676 that we so enthusiastically support.

The Real Issue

That Needs Debate

Thus the real issue on which this Office hopefully seeks to be a catalyst in promoting open, candid and vigorous public debate, is how to determine what public defense implementation method is best for Michigan, especially at this time of critical budget deficits, in order to achieve the public defense improvements needed state-wide, that are both operationally sound and cost effective.

The Choice to be Made

For example, the choice to be made in our view, is should we wait and permit a State Public Defense Commission, after it has been established and become operational, to then carefully choose what implementation method is best for Michigan during these times of huge budget deficits everywhere?

This Office says "Yes," we should wait and let the Commission make that determination as part of its Strategic Plan for implementing a public defense system that is in the best interests of Michigan during these critical times, and to do so without unnecessarily taking away local control from counties and judicial districts, to continue to hold accountable to the community served, all of the elected and appointed officials of the major components of their trial level Criminal Justice System (CJS).

HB 5676, the MCJ and the esteemed responders to my article in the Washtenaw Legal News edition of January 07, 2010, (which this Office continues to stand by as accurate with no intent to ever knowingly mislead anyone), say "No," and advocate for a particular implementation method for public defense, to be immediately made compulsory by law, and then imposed upon the new Public Defense Commission before it is even established, as HB 5676 currently requires.

And in saying "No," that we should not wait, they continue to endorse accomplishing this feat by adroitly interweaving throughout the current text of HB 5676, a requirement that a new middle level of bureaucracy, called "Regional Branch Offices," be created, as a kind of "before the fact" and "during implementation," quality control method to be an addition to an already existing "after the fact," hindsight quality control function, so ably performed already by our appellate public defense attorneys of SADO and MAACS.

And by doing so, such legislative legerdemain creates the illusion that the expensive "regions" method is inherently a natural and essential part of any future public defense delivery system and thus there is no choice but to automatically go that way.

However, those of us in the know and those of us who have not been already misled, understand clearly that the concept of "regional branch offices," as a public defense delivery system, is but one of many options that should be carefully examined openly (not secretly in an unnecessarily over - controlled atmosphere as has been done previously) and debated publically - well before a final decision is made.

The Best Way To Go

This Office maintains that the innovative implementation method of having regional branch offices physically present on the ground (like standing armies in Iraq or Afghanistan) to supervise our already existing state-wide infrastructure of 57 Judicial Districts ("regions," if you will, as some so broadly apply the term) already in place, as if they were enemy combatants to keep constantly under surveillance, is simply unneeded, over- reaching, goes a bridge too far, and will only result in wasteful spending that this Office most conservatively estimates will amount to many millions initially and ultimately billions when such a boondoggle stretches out over a period of time.

This Office is also wary of creating "benevolent" dictatorships of omnipotent powers concentrated into the hands of a few chosen attorney elites, based on the absolutist rationale that this is the one and only acceptable way to go because the local officials cannot be trusted to do what is right, is simply not valid and has not been our experience in Washtenaw County.

Moreover, this type of totalitarian extremism, whether it comes from the left or right of the ideological spectrum, is just plain dangerous, fosters wasteful spending and can ultimately lead to corruption.

Our Founding Fathers got it right in requiring that we have checks and balances, a division of powers and functions and that all governments (be they at the federal, state or local level), always "derive their just powers from the consent of the governed" and be accountable to the communities that they are privileged to partner with and serve.

Thus this Office, from our own personal experience over decades, knows that it would be much more cost effective for our state to simply continue to contract with local private bar groups and solo practitioners (who already provide over 95 percent of all public defense in Michigan and, in our opinion, should be permitted to continue) along with the non - profit Legal Aid and Defenders Office of Detroit/ Wayne County, the small scale public defender experiments in Alpena, Bay and Chippewa) and the full service Office of Public Defender in Washtenaw that is an integral part of the executive branch of county government and a living testimonial that you can routinely meet all of the required standards for quality, including minimally the 11 Principles adopted by the American Bar Association and State Bar of Michigan of what a public defense system should be, and do so with the utmost cost effectiveness, with local control remaining with the counties, municipalities and townships served, and with local officials whom they elect or appoint, still continuing to be accountable to them.

The Different Nationwide

Public Defense Delibery Systems to Carefully Consider Without Mandating Beforehand a Particular One

as HB 5676 Currently Does

Since our U.S. Supreme Court has not ruled that the central government of any state, must select a particular kind of delivery system for providing public defense services, as the only oversight method acceptable for meeting and enforcing the minimum American Bar Association (ABA) and State Bar of Michigan (SBM) principles for what a public defense system should be, there still remain many different trial level implementation methods in existence throughout our country that should be carefully considered before selecting a particular option most suitable for our home rule state of Michigan.

Thus, attempts to force a particular, very expensive and wholly unneeded, public defense delivery system, called "regional branch offices," upon our state, as HB 5676 currently attempts to do, and as the Michigan Campaign for Justice (MCJ) continues to promote, is counter-productive and will only hamper getting consensus for enactment of a much needed public defense law that is feasible for our state at this time.

For example, as contained in the July 2006, Spangenberg Report for the ABA, some of the different appellate a/o trial level public defense oversight delivery systems currently existing throughout our country are as follows:

* Eleven states have a state - wide public defense program with a state commission. They are: CO., est. 1969; MD., est. 1971; HI., est. 1972; KY., est. 1972; NH., est. 1972; CT., est. 1974; WI., est. 1977; MO., est. 1982; MN., est. 1986; AR., est. 1997 and MT; est. 2005;

* Ten states have a state-wide public defense program with a Commission that shares partial authority with local governments. They are: NV., est. 1971., KS., est. 1981; OH., est. 1984., IN., est. 1989; OK., est. 1991; SC., est. 1993; LA., est. 1994; NE., est. 1995; TX., est. 2001; and GA., est. 2003;

* Nine states have a state- wide public defense system without a commission. They are: RI., est. 1942; DE., est. 1953; NJ., est. 1967; VT., est. 1972., NM., est. 1973; WY., est. 1977; AK., est. 1980; IA., est. 1981 and WV., est. 1989.

* Five states have a state - commission and an appointed State Director of public defense. They are: MA., est. 1983; NC., est. 2000; OR., est. 20001; VA., est. 2004 and ND., est. 2005;

* Two states have elected Public Defenders at the trial level. They are FL and TN.

See link below:

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

Voluntary Nationwide Funding of Public Defense by States

Since the Gideon decision and as of July 2006, 48 of our 50 states now provide some funding (either full or partial) from their state central government to support local governments in meeting the mandate from our Supreme Court to provide both quality appellate a/o trial level public defense throughout our country.

In all of our states, only two states, Pennsylvania and Utah, provide no funding support whatsoever to their local governments to support public defense expenditures.

And, it is emphasized again, Michigan has provided only partial support for public defense of the appellate level of public defense since establishment of the State Appellate Defender Office (SADO) by state law in 1969, enabling it to become operational in 1972, but has never provided any funding support whatsoever to help local governments at the county, municipal and township levels, with required expenditures for trial level public defense.

Clarification of the

term "Patchwork"

Since public defense at the trial level has been always handled by the private bar in Michigan and will most certainly continue to be, whether we are forced to ever have regions superimposed upon our existing infrastructure of 57 judicial districts or not, there really are only a few variations of public defense delivery systems used everywhere rather than a structural patchwork of 83 different kinds as too often misleadingly and incorrectly described. They are the continued use of the private bar to handle over 95 percent of trial level public defense everywhere as solo practitioners or in small groups with only the exception of the Non Profit LADA of Detroit, the full service Washtenaw County Office of Public Defender (WCOPD) and the small scale public defender versions in Alpena, Bay Chippewa counties.

And they are all believed to be supervised by the Judiciary, except for the WCOPD and the LADA of Detroit.

The real variations that exist, relate only to inadequate funding overall, plus a lack of parity with the prosecution in compensation and resources and the lack of uniform public defense quality standards to adhere to that minimally include meeting the 11 Principles of what a public defense system should be.

Thus, we submit, that can be fixed and effectively enforced without the need for an additional middle level of bureaucracy to be superimposed over our existing infrastructure of 57 Judicial Districts already in place.

Recommendations

This Office therefore makes the following 10 recommendation to improve HB 5676:

1. Take the lay of the land as it presently exists with our already established infrastructure of 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 make funding and oversight enforcement improvements, as needed, to achieve uniformly a quality of public defense that minimally meets all of the ABA and SBM adopted principles of what a public defense system should be, as achieved by the Washtenaw County Office of Public Defender many years ago, because that is the most effective, efficient, economical and ethical funding and oversight enforcement system that would be best for our home rule state of Michigan at this time.

2. Increase the current composition of the proposed Public Defense Commission whereby it is increased to at least 19 members or more by adding two members from the Michigan Association of Counties (MAC), two members from the Michigan Municipal League (MML), two members from the Michigan Township League (MTL), two members from the NAACP, two members from organizations such as the Huron Valley Association of Black Social Workers and two members from organizations such as the Black Employees Association of Washtenaw County Government (BEAWCG), in order for it to be more representative of our different communities served and the particular minority group of African Americans so disproportionately impacted adversely within our current Criminal Justice System (CJS) at the trial level; and, to prevent it from becoming over stacked with private practitioners who might never view favorably the establishment of a County Office of Public Defender that is an integral part of county government as exists in Washtenaw County.

And in that light, since CDAM membership is understandably focused primarily on improving work opportunities for private practitioners, as opposed to the use of Non-Profit and County Offices of Public Defender, it is believed to be a conflict of interest for CDAM to have any members on the Commission with the authority to make recommendations toward that end, unless counter balanced with memberships that will fairly represent the County Offices of Public Defender and the Non Profit Legal Aid and Defenders Offices in Detroit. Also proscribe what rights shall not be violated in order to prevent abuse of authority.

3. Once Counties are provided with quality standards to uniformly follow and full or partial financial support, give local officials the opportunity to demonstrate (with Washtenaw County as an example, that they indeed can be trusted to do what is right and need not be made powerless to hold all major components of their local Criminal Justice System (i.e. Police - Sheriff, Prosecutor, Public Defense, Judges and Corrections) accountable to the community that they serve, as part of an already existing state- wide system of infrastructure already in place, consisting of our 57 judicial districts ("regions") already in place that encompass our 83 counties.

4. Take out of HR 5676 all references to "Regions" and" Regional Branch Offices, so adroitly interwoven throughout the fabric of the current text of the Bill, to achieve a fait accompli foisting upon a Public Defense Commission, before it is established and becomes operational, a particular public defense method of implementation, rather than to leave that for the Commission to determine later, as part of its Strategic Plan, what is best for Michigan.

Attempting to achieve this kind of fait accompli by legislative legerdemain undermines credibility and trust - thereby hampering rather than helping to gain the consensus needed to enact an appropriate public defense law that is urgently needed to improve the quality of public defense throughout Michigan.

5. Use a relatively inexpensive "Investigations and Contract Enforcement" Section at the central office headquarters in the Capital of a state public defense office at the state level, to 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, while still respecting 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, without the Public Defense component being the sole and solitary exception.

6. Achieve "Independence"(as intended to mean primarily "Independence from the Judiciary" as required by Principle No. 1), by simply providing for local Judges to make all indigent appointments to a designated official of the executive branch of local government, to in turn be assigned to the private bar by that official to groups or to solo practitioners as needed or to the nonprofit LADA of Detroit/Wayne or to the Washtenaw County Office of Public Defender.

7. Keep SADO and MAACS, with their own separate commissions, as they are to avoid the costly conflict of interest problems experienced by Montana as a result of having done that.

8. Fund both Juvenile Delinquency and Neglect and Abuse cases because they are frequently intertwined and/or interrelated.

9. Provide for the House Judiciary Committee to coordinate with the House Appropriations Committee to begin a joint and simultaneous determination of how much all of this will cost and from whose existing budgets will the necessary funds have to come in taking away from Peter to give to Paul, since our State Government will not be able to borrow or print new money as our Federal Government is able to do.

10. Return to the course of action originally recommended in 2002 and before that, by the real "grass roots" organizations, such as our Michigan Coalition for Justice (MCJ), that always included everyone, operated openly, especially as regards any Legislative Working Groups(LWG),and that preceded by many years our current Michigan Campaign for Justice (MCJ), a 501 c (3) organization, which followed it and appears to have adopted its acronym identity and inherited its many endorsers.

That course of action is set forth in 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 the Prosecuting Attorneys Association of Michigan (PAAM).

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 may be conveniently viewed at following link: http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/mi-modelplan.pdf

So, in summation, we enthusiastically support having the central government of Michigan fully or partially find public defense in support of our counties, municipalities and townships, where the state trial level criminal justice system is always actually implemented, but to do so without taking any power whatsoever away from these same counties, municipalities and townships, to select the method of public defense service delivery (i.e. the private bar in groups or as solo practitioners or by the nonprofit LADA of Detroit/Wayne County or the Washtenaw County Office of Public Defender) most suitable for them, as a contractual condition for continued funding support from the state, by strict adherence to uniform quality standards that minimally enforce the 11 principles of what a public defense system should be, by the most operationally and cost effective method possible, while permitting local governments to continue to be able to select and hold accountable to the community served, the Officials whom they choose to elect or appoint to serve them (i.e. their elected Sheriff, Prosecutor and Judges and appointed Police Chiefs, Correction Officials and County Public Defender). The 38 year old Washtenaw County Office of Public Defender is a living testimonial that this is an effective, efficient, economical and ethical way to go.

Published: Fri, Jan 29, 2010

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