Powell still concerned with MCJ public defense proposal

By Lloyd E. Powell

Washtenaw County Chief Public Defender

It continues to be our perception that most people already agree with the laudable message of the Michigan Campaign for Justice (MCJ) of what needs to be done to improve the quality of public defense throughout our state by having uniformly throughout all of our counties and judicial districts, a Criminal Justice System (CJS) that minimally meets the principles adopted by the American Bar Association and the State Bar of Michigan of what a public defense system should be and are already fully supportive of the proposed legislation in HB 5676 for enactment of a law which accomplishes that end.

Thus the issue that we need to debate is "how" to best accomplish that noble end because the devil is too often in the details of implementation.

However, before proceeding further, this Office would like to emphasize at the outset that HB 5676 grandfathers in county public defense offices such as ours.

See Sec. 7, (1), (c), page 9 and Sec. 3. (i), page 3, of HB 5676.

Thus we have no self preservation personal concerns whatsoever for the continued existence of our Office regardless of the final outcome of this proposed legislation, one way or the other, and therefore our comments on HB 5676 are motivated solely by what we perceive to be in the best interest collectively of all of us in choosing the wisest course of action to follow to improve the quality of public defense throughout our state and thereby enhance rather than hamper the enactment of this proposed legislation into law voluntarily and as soon as possible.

And indeed that is why our 38-year-old Washtenaw County Office of Public Defender continues to be a living testimonial that quality public defense can be provided with the utmost cost effectiveness as an exception to the abysmal status of public defense nation-wide as evidenced by a recently released survey (September 16, 2010), by the U.S. Department of Justice, Bureau of Justice Statistics (BJS).

Recent reports also reveal particularly that the states of Minnesota and Montana have the same public defense deficiencies as exists everywhere throughout our country.

And that is why, in a nutshell, this Office has always enthusiastically supported having the central government of Michigan fully or partially fund 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 Legal Aid and Defenders Association of Detroit (NLADA) of Detroit/Wayne County or the Washtenaw County Office of Public Defender) most suitable for them, as a contractual requirement 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).

That is why also, In keeping with the adage that "a picture is worth a thousand words" and an "Organization Chart" is worth even more, this Office has prepared the accompanying Chartnumber 1, attached, to more clearly, succinctly and readily explain what HB 5676 (which is lengthy and reader un-friendly) could become if enacted into law, as currently written, while our accompanying Chart number 2, attached, sets forth the recommendations of this Office that HB 5676 be cleansed of the unnecessary and expensive "power grab" agenda adroitly interwoven throughout its text, and instead re-consider the excellent "Model Plan for Public Defense Services in Michigan of 2002" (shown at the link below) for discussion on the merits of the latter being incorporated into HB 5676 for shared power between local government and state government, in lieu of having only a dictatorship type arrangement as HB 5676 currently proposes along with unnecessary supervisory bureaucracies also that could cost many millions initially and billions over time.

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

We have to do this in order to get this much needed legislation voluntarily enacted into law because ACLU litigation to force our State toward that end is going to be difficult to achieve since our U.S. Supreme Court has only ruled that public defense must be provided in state courts throughout our country, without ever specifying that the central government of states must provide funding for it, rather than elect to leave that financial option solely on their counties, municipalities and townships, as thirteen (13) of our states have chosen to do nation-wide for public defense at the trial level. In addition to Michigan, those states are California, New York, Illinois, Pennsylvania, Washington, Arizona, Maine, South Dakota, Utah, Idaho, Alabama and Mississippi.

The U. S. Supreme Court also has never ruled (nor do we believe it ever will), that a particular option of oversight a/o service delivery (such as expensive new bureaucracies of "Regions and Region Branch Offices") should be required by a state, rather than to always leave such options open for careful determination later by capable management and informed leadership.

Thus the real issue again for 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 constraints, in order to voluntarily achieve the pubic defense improvements needed state-wide that are not only operationally sound but also cost effective.

Thus we should cleanse "reader unfriendly" HB 5676 of all references to unnecessary new bureaucracies of expensive "Regions" and Regional Branch Offices that would only siphon off funds from those who actually are doing the work, because in our home rule state there are more effective, efficient, economical and ethical options, or combinations thereof, from which to choose, that again are much more operationally sound and cost effective for enforcing uniform standards for quality public defense throughout our state, and these options should be left for enlightened management to later determine carefully and wisely after a commission and /or state agency has become operational and not have that mandated by law beforehand as HB 5676 currently does.

One obvious operationally sound and cost effective option from which to choose (in our "computer" rather than "horse and buggy" age) would be the use of a relatively inexpensive "Investigations and Contract Enforcement" Section at a central office headquarters in the capital to electronically monitor and enforce uniform standards effectively for quality public defense, that minimally meet all of the ABA and SBM Principles, without creating an unneeded and expensive new statewide bureaucracy of branch offices to be superimposed over our already existing structure in place of 57 Judicial Districts (regions).

The current composition of the proposed Public Defense Commission should be increased to become much more diverse with stakeholders as previously recommended in the "Model Plan for Public Defense Services in Michigan of 2002" with added inclusion of county and possibly minority group representation, rather than the current 9-member commission that HB 5676 currently requires, in order for it not to be controlled from the outset by the Appellate (SADO) and Trial Bureaus it is supposed to supervise. And if we are going to go with a 9 member Commission, then SBM & CDAM should get only one (1) member each, with other stakeholders like The Michigan Association of Counties (MAC) and the Michigan Association of Townships (MAT) or the Michigan Municipal League (MML) receiving one (1) member each.

HB 5676 should also include funding for both Juvenile Delinquency and Neglect and Abuse cases and not leave out the latter as is currently done because they are frequently interrelated. And "Independence" should be achieved 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 local government official, to groups or to solo practitioners as needed or to the nonprofits LADA of Detroit/Wayne or to the Washtenaw County Office of Public Defender.

And we must remember that House & Senate Judiciary and Appropriations Committees will always have to collaborate to determine costs and from whose budgets funds will have to be taken since our state will not be able to print new money or borrow as the federal government is able to do, and "funding" is the horse that will have to pull the public defense carriage - whether that carriage be wisely put together or the most expensive one that can be constructed (as "Regions & Regional Branch Offices" would surely be).

All of the above is what we recommend in order to get this legislation voluntarily enacted into law because the best government will always be one that is closest to, and accountable to, the people who are served by it, as it is with the other major components of our Criminal Justice System (i.e. the elected County Sheriff, Prosecutor, Judges, appointed Police Chiefs and a County Public Defender who is either appointed or elected) where it is always implemented for state law (not federal) at the county or judicial district level.

Lloyd E.Powell http://publicdefender.ewashtenaw.org Tuesday, 11/02/2010

Capsule of Recommendations are below:

State-Wide Public Defense Improvement Recommendations: Provide for the central government of the state to:(1) Establish uniform public defense standards for quality to be met state-wide as a contractual condition for full or partial funding support from the state, with shared control with local governments and communities, in an already existing state structure in place of 57 judicial districts (regions) serving 83 counties throughout our home rule state, with cost effective electronic oversight monitoring bolstered by follow-up physical inspection visits as required to verify compliance by local governmental Offices of Public Defender, non-profit organizations, private law firms and solo practitioners in maintaining required standards, in lieu of HB 5676 requiring establishment of unnecessary bureaucracies of expensive branch offices; all as an agreement to be met by local governments, non-profits and private groups or individuals as a contractual requirement for receiving full or partial funding from the central government of the state; and (2), shared state and local control that enable the communities served to select and hold accountable to them those who serve them, (3) further improvement of HB 5676 to also help fund Neglect and Abuse as well as Delinquency cases and Friend of the Court cases; and (4) Provide for a State Public Defense Board of Commissioners to consist of a minimum of 17 members in order to be more representative of all stakeholders as previously recommended in the 2002 "Model Plan for Public Defense Services in Michigan", rather than a 9 member Commission designed for almost majority control at the outset by the chief appellate and chief trial public defenders to be supervised - through the 4 members to be jointly selected by CDAM and SBM; and if we are going to go with a 9 member Commission, then SBM & CDAM should get only one (1) member each with other stakeholders like The Michigan Association of Counties (MAC) and the Michigan Association of Townships (MAT) or the Michigan Municipal League (MML) receiving one (1) member each.

State-Wide Public Defense Improvement Recommendations: Provide for the central government of the state to:(1) Establish uniform public defense standards for quality to be met state-wide as a contractual condition for full or partial funding support from the state, with shared control with local governments and communities, in an already existing state structure in place of 57 judicial districts (regions) serving 83 counties throughout our home rule state, with cost effective electronic oversight monitoring bolstered by follow-up physical inspection visits as required to verify compliance by local governmental Offices of Public Defender, non-profit organizations, private law firms and solo practitioners in maintaining required standards, in lieu of HB 5676 requiring establishment of unnecessary bureaucracies of expensive branch offices; all as an agreement to be met by local governments, non-profits and private groups or individuals as a contractual requirement for receiving full or partial funding from the central government of the state; and (2), shared state and local control that enable the communities served to select and hold accountable to them those who serve them, (3) further improvement of HB 5676 to also help fund Neglect and Abuse as well as Delinquency cases and Friend of the Court cases; and (4) Provide for a State Public Defense Board of Commissioners to consist of a minimum of 17 members in order to be more representative of all stakeholders as previously recommended in the 2002 "Model Plan for Public Defense Services in Michigan", rather than a 9 member Commission designed for almost majority control at the outset by the chief appellate and chief trial public defenders to be supervised - through the 4 members to be jointly selected by CDAM and SBM; and if we are going to go with a 9 member Commission, then SBM & CDAM should get only one (1) member each with other stakeholders like The Michigan Association of Counties (MAC) and the Michigan Association of Townships (MAT) or the Michigan Municipal League (MML) receiving one (1) member each.

Published: Thu, Dec 9, 2010

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