A long way to go

(l-r)?Jonathan Sacks, head of the Michigan Indigent Defense Commission; Miriam Aukerman, staff attorney, ACLU of Michigan; and Desiree Ferguson, State Appellate Defender Office and Adjunct Clinical Assistant Professor of Law, University of Michigan Law School, held a panel discussion at a U-M symposium last month, and discussed
“Combating The Criminalization of Poverty in Michigan.”

Photo by Frank Weir

MIDC executive director delivers ‘progress’ report

By Frank Weir
Legal News

Michigan’s ranking in providing for indigent criminal defense is so poor it has been measured by the Legal Aid and Defender Association as 44th in the country in terms of spending.

According to Jonathan Sacks, executive director of the Michigan Indigent Defense Commission, “The Legal Aid and Defender Association did a study in 2008 and found that in Wayne County, there were as many as 2,000 misdemeanors handled a year by attorneys which could mean attorneys spending just a few minutes with some defendants. In many courts, there was no training for practitioners, and funding for investigation and experts was unavailable.

“There was a wholesale denial of representation in certain misdemeanor courts,” Sacks said. “Often no defense attorney was to be seen. Defendants could have no idea of what they were doing in pleading guilty. There was the potential for collateral consequences to convictions. They could go to jail for a probation violation.”

Sacks spoke at a breakout session during a University of Michigan Law School symposium February 19-20 titled, “Innocent Until Proven Poor, Fighting the Criminalization of Poverty,” sponsored by the Michigan Journal of Race and Law.

Sacks noted that Michigan’s sorry state of indigent defense resulted in a lawsuit, and the NLADA research study at the same time provided the impetus that something needed to be done. As a recently released commission report stated, “In 2011, Governor Rick Snyder established the Michigan Advisory Commission on Indigent Defense after a series of lawsuits and research reports documented widespread concerns with the delivery and practice of indigent defense in the State of Michigan.”

Sacks continued, “The governor appointed an advisory group on indigent defense and folks with the power to make things happen were appointed: judges, administrators, prosecutors, criminal justice stake holders. They looked at the problem.”

Sacks noted that the group reached three conclusions: (1) There was precious little data and research to draw upon; (2) In Michigan’s 83 different counties, there were more than 100 systems for indigent defense. In some cases, there were two different systems in the same courthouse; and (3) There were no minimum standards about how indigent defense should be conducted aside from Supreme Court law.

He explained that the problem originated from Michigan’s system of total county funding for indigent defense, with no help from the state. Sacks added that a number of other states either fund indigent defense completely or provide half of the funds needed. The state of Michigan funds nothing, he indicated.

“Our permanent commission seeks to have the state meet its Sixth Amendment obligations,” Sacks said.

He noted that the commission has begun to address the three concerns by conducting research to see how big the problem is; develop minimum standards so all counties have the same understanding of what is required for adequate indigent defense; and “the state then needs to step in and start funding county compliance plans with the minimum standards.”

He explained that once minimum standards are developed, they are submitted to the state Supreme Court and once adopted, every jurisdiction will have six months to put together a compliance plan. The commission’s website noted that the Michigan Supreme Court will hold a hearing in May and will hopefully adopt statewide standards for indigent defense by early July.

Sacks noted the commission chose to pursue fundamental standards with little to argue about for its first submission to the court.

“No one disagrees that someone facing incarceration should have a right to an adequate investigation and expert witnesses at their disposal. That is clearly constitutionally based.”

In addition, the commission is stressing minimum standards for skills training and continuing legal education for defense attorneys.  Also, the commission is stressing attorney presence at the earliest stages of court involvement, for instance at arraignment and bail hearing, and also that there be confidential spaces for initial interviews.

“We anticipate future standards around tougher issues and these will be a bit more controversial,” he noted. “About a year from now, we will present a compliance plan and costs for all 83 counties. That will be presented to the legislature.

“We feel all these efforts, initial litigation, advocacy, the formation of the commission, research and data collection, has resulted in a new agency that will make a difference in criminal defense for indigents in Michigan,” he concluded.

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