Copyright 2008, The Detroit Legal News
Friday, July 18, 2008
On Point
By Catherine McClure
State action must end public defender race to the bottom
The recently released report by the National Legal Aid and Defender Association on the
unqualified failure of Michigan’s public defender system is still making headlines across the
state, although its findings are hardly news to those who work in the system. For more than 30
years state and national experts have documented countless deficiencies in the way Michigan
provides for indigent criminal defense, so far to no avail.
Fortunately, the state can no longer ignore its constitutional obligation to provide competent
representation to criminal defendants who cannot afford to hire their own attorney. Last year,
frustrated with the lack of state action, the American Civil Liberties Union filed suit against the
state claiming that its failure to guarantee basic compensation and support to county-based public
defender programs violates its constitutional obligation under the Sixth and Fourteenth
Amendments. With this comprehensive report by NLADA unconditionally confirming that none
of the public defender services in its sampling of county programs are constitutionally adequate,
our state legislators and courts have little choice but to finally take action.
Unfortunately, the required restructuring of the state’s public defender services could not come at
a worse time. As the NLADA report itself points out, the state’s growth rate since 1997 has
ranked 48th in the nation, and our economy is in a persistent recession. While we can therefore
hardly afford to pump large sums of money into the system immediately, we can still carry out
important reforms through a redistribution of resources and cost-effective organizational and
administrative changes.
The NLADA report was commissioned by the state legislature in 2006 and is the result of a
yearlong study of Michigan’s county-based public defender systems in ten representative counties
across the state. It evaluates the systems against national standards adopted by the American Bar
Association in 2002, widely regarded as the fundamental criteria for constitutionally adequate
legal representation. The report concludes that each of the counties studied fails to meet every
one of the ten ABA standards.
While the report details numerous problems, the overriding deficiency in the system is structural.
ABA standards require state funding for public defender services and a statewide structure
responsible for ensuring uniform quality because it is ultimately the state’s burden under the
Constitution to provide indigent criminal representation. The Michigan public defense delivery
system is one of only seven in the nation wholly funded by and organized on the county level.
The report characterized the county-based paradigm as ineffective for numerous reasons, the most
important of which was the counties’ inability to shoulder the financial burden given their
dependence on property taxes for revenue in Michigan’s depressed market. Michigan ranks 44th
of the 50 states in indigent defense spending per capita, in need of an additional $50 million at a
minimum to match the national average.
Unfortunately as the report notes, the counties most in need of indigent defense services are the
ones that can least afford them. Services in the poorest counties are therefore often under-
resourced, or worse, outsourced completely to contract attorneys who work pursuant to low-bid
flat fee contracts with outrageous caseloads and inherent conflicts of interest, since they are paid
more by doing less. In Detroit for example, five part-time public defenders spend an average of
32 minutes per case, handling 2,400 to 2,800 cases per year, while the national standard for a full-
time defender is only 400 cases.
In addition to the structural issues, the report uncovers another critical flaw in the Michigan
system relating to ABA standards for parity between public defense counsel and public
prosecutors. The report notes that prosecution and defense must be on equal footing in terms of
workload, salaries, benefits, and support in order for the adversarial process to work. But it found
that public defenders in Michigan are generally treated like second-class citizens with
unmanageable workloads, minimal pay, and no training or support as compared to public
prosecutors who are county employees with salary, benefits, and extensive support.
There is no question that considerably more funding is needed for a statewide reform of
Michigan’s public defender services. However critical changes can be initiated now with
minimal additional funding. The legislature can begin work, with the help of the courts, to create
a state agency for hiring, training and appointment of defense attorneys, with program guidelines
that include standards for equal resource allocation across counties and reasonable workloads.
And state and local officials can reallocate budgets and resources available to public defenders
and prosecutors to begin to bring them into parity.
A weak public defender system carries with it many costs. Every wrongful conviction brought
about by human error and lack of an adequate defense results in wasted taxpayer money spent on
unnecessary prison terms and appeals, to say nothing of the social costs of imprisoning the
innocent while the guilty remain free. The cost to Michigan of continuing to do nothing for its
public defenders will therefore far outweigh the cost of reform. With a pending lawsuit and this
NLADA report, Michigan really has no choice but to finally act.
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Catherine McClure is an Ann Arborbased legal affairs writer who practiced law with major
firms in Los Angeles, Chicago, and Ann Arbor. She has also served as an adjunct professor of
law in the business schools of Michigan State University and the University of Michigan.
McClure received a B.A. and M.A. from the University of Michigan, and her law degree from the
University of California, at Berkeley. She can be reached at mcclur@umich.edu or visit her blog
at http://legalnewswatch. blogspot.com.