By David N. Goodman
Associated Press Writer
DETROIT (AP) — Michigan was a 19th century pioneer in providing legal aid to poor criminal suspects.
Now, it has one of the nation’s stingiest and most fragmented systems for representing the 80 percent of defendants who can’t afford a lawyer, a wide range of critics say.
The system often leads to people’s convictions being reversed because of mistakes an adequate legal defense should have caught. And it adds millions of dollars to prison costs for sentences that exceed state guidelines.
“Michigan’s neglect of many years generates large downstream costs,” said Dawn Van Hoek, chief deputy director of the State Appellate Defender Office. “We need to connect the dots and adequately fund the system.”
The office estimates Michigan would save $132 million a year in prison costs if it eliminated the excessive penalties judges impose because of improper application of state sentencing guidelines.
Of all the filings the State Appellate Defender Office made in 2008, 48 percent cited ineffective assistance of counsel, up from 14 percent in 1981.
With a class-action challenge to the system set for oral arguments next month before the Michigan Supreme Court, the state House Judiciary Committee is drafting a bipartisan proposal to overhaul Michigan’s 153-year-old indigent defense system.
The U.S. Supreme Court established the right to a free public defense in 1963, when it ruled for Florida convict Clarence Gideon that the Sixth Amendment required states to appoint lawyers for felony defendants who can’t afford them.
Michigan was ahead of the game then, having created its own county-level indigent defense system in 1857.
Michigan even filed a brief in support of Gideon’s successful plea to the U.S. Supreme Court.
Today, Michigan’s indigent defense system is “failing in nearly every way,” former Michigan Supreme Court Justice Dennis Archer told a U.S. House Justice Committee hearing last year. Archer, a former president of the American Bar Association and two-term Detroit mayor, said the state now has “a patchwork of underfunded, unaccountable systems.”
Michigan’s annual indigent defense spending of $74.4 million, or $7.35 per capita, is 38 percent below the national average and less than all but six states, the National Legal Aid & Defender Association said in “A Race to the Bottom,” a report commissioned by Michigan lawmakers.
Courts in each of Michigan’s 83 counties set their own pay rates and hiring systems, deciding what portion of their state-set budgets to spend on indigent defense.
“The level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed,” the 115-page report said.
Lawmakers from both parties in the state Legislature recognize the need to act, said Kent County Republican state Rep. Justin Amash, a member of the House Judiciary Committee.
However, bill sponsor Bob Constan, D-Dearborn Heights, acknowledged the measure will be a tough sell at a time when Michigan faces hundreds of millions of dollars of cuts to K-12 schools, universities and health care.
“It’s just the lowest thing people want to fund,” Constan said Thursday. He said implementation may have to be spread out over four years.
In place of the current system, House Bill 5675 would create a statewide public defense system to fund and supervise the work of lawyers who represent the poor.
An appointed Public Defense Commission would oversee separate offices for trial and appellate defenders.
Appointments would have to be based on experience and skill, case loads would be limited and pay brought in line with that of prosecutors.
The bill also would create statewide standards for deciding who is poor enough to need legal aid and allow for some defendants to pay part of the cost.
Regional offices would manage services, which would use a mix of private lawyers and salaried public defenders.
Speaking for the Michigan District Judges Association, Ingham County Judge Tom Boyd acknowledged problems with today’s system but told a Judiciary Committee hearing Tuesday he fears “unintended consequences” from a wasteful bureaucracy.
Should the Michigan Legislature fail to act on its own, the courts may force a change.
In 2007, the American Civil Liberties Union filed a class action lawsuit against the state on behalf of poor defendants in Berrien, Genesee and Muskegon counties.
The complaint said court-appointed lawyers in those counties were either too rushed or fear they won’t get more work if they slow down the docket with motions or requests for expert assistance.
National ACLU staff lawyer Robin Dahlberg told the Michigan House committee the passage of House Bill 5676 would go a long way toward fixing the problems.
“Until and unless the state does act, Michigan’s citizens will continue to be wrongfully deprived of their liberty,” she testified.
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