Michigan Justice Is Threatened By Underfunding

    March 5, 2007
    Michigan Lawyers Weekly
    Editorial

    When it comes to allocating resources for indigent criminal defense, Michigan ranks near the bottom nationally.

    This hurts not only practitioners and their clients, but the criminal justice system itself.

    Specifically, by paying fees to assigned trial and appellate counsel which don't cover the overhead costs of maintaining their practices, counties are both denying lawyers the tools they need to adequately represent their clients and discouraging experienced attorneys from handling court-appointed cases.

    Our "adversarial" system is based on the notion that two equal adversaries will challenge each other in the courtroom and, from this engagement, the truth will emerge.

    However, to function fairly, the equal adversaries must indeed have equal resources.

    In Michigan, it's not even close. Whereas prosecutors are, for the most part, reasonably paid, with salaries and benefits commensurate with their obligations (this is not to say that prosecutors' compensation, especially in some out-state areas, could not be improved), it's not uncommon for conscientious defense attorneys who do all that their cases require to be compensated at a level that amounts to a sub-minimum wage hourly rate.

    This occurs through low hourly fees, arbitrary cuts of the fees submitted to judges, and artificial "caps" or maximums on allowable fees.

    Moreover, the problem intensifies when indigent defense counsel needs investigators or expert witnesses. Unlike the prosecution - who has the benefit of a police force and crime labs to conduct investigation and build cases - appointed lawyers' requests for such services are frequently denied or capped at an impractical and unrealistically low maximum dollar amount.

    What happens from here should surprise no one.

    We risk committing one of the worst crimes of all: Convicting and imprisoning innocent people. Studies have shown that inadequate representation and lack of defense investigatory and expert witness resources play a major role in wrongfully ensnaring the innocent.

    Additionally, there are the practical, deleterious effects of underfunding.

    Not only have there been after-the-fact DNA exonerations in some states that have led to successful wrongful imprisonment lawsuits against the government, but the costs of an unnecessary incarceration - due to actual innocence or erroneously calculated sentences - are substantial.

    That Michigan citizens are taking notice of the underfunding problem is clear from recent developments in the area.

    For instance, a study conducted by the Michigan Public Defense Task Force (Task Force) (www.mipublicdefense.org) - which consists of citizens, lawyers, judges, prosecutors, former legislators, and treatment community representatives - has concluded that the current "patchwork" system of placing the funding responsibility on the individual counties doesn't work.

    In its place, the Task Force, in a draft model bill, has proposed a system whereby the state's constitutional obligation to ensure that the indigent have the effective assistance of counsel is funded by the state.

    Additionally, the Task Force, in conjunction with former Senate Judiciary Committee Chair Alan L. Cropsey, has secured passage of Senate Concurrent Resolution 39, which asks the National Legal Aid and Defender Association and the State Bar of Michigan, in cooperation with the State Court Administrative Office, to gather data on the number of indigent criminal defense cases and their costs, and to issue a joint report to the Michigan Legislature.

    At a practical level, the underfunding of indigent criminal defense services is one of resource parity. At its core, however, the issue is one of equal justice.

    Michigan must do what is right before our state is forced to do it.

    It is critical that all citizens of this state be able to trust in the fairness of our criminal justice system.



National Association of Criminal Defense Lawyers (NACDL)
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