Pleading the Sixth: On June 13, 2013 the Michigan Legislature passed separate yet identical right to counsel reform bills in each chamber of the legislature. On June 19th, the Michigan Senate held a concurrence vote on the House version of the bill, overwhelmingly endorsing it and sending on to Governor Rick Snyder for his signature. As advocates for indigent defense reform pause to celebrate, the 6AC considers the long road ahead to effectively implement the bill.
“What could be more foundational to a society than meting out justice well?” asked Michigan state representative Tom McMillin (R) upon the passage of comprehensive indigent defense reform in an interview with the 6AC. McMillin and his Senate colleague Bruce Caswell (R) were the principle authors and advocates of two identical bills (SB 300/HB 4529) that passed each respective chamber of the legislature on June 13th by overwhelming majorities (Senate 32-6; House 101-6). But because they were separate bills, the reform package could not be sent on to Governor Rick Snyder until a concurrence vote happened in either chamber on the other side’s bill.
That technicality was cleared up on June 19, 2013 when the Senate concurred on the House bill on a vote of 33-4 (with one abstention). Though not needed, the House is poised as of the time of this writing to concur on SB 300 later in the day as a show of support for fixing the state’s long-known indigent defense deficiencies.* “Putting someone behind bars is necessary when we are as certain as possible that the person deserves it,” continued McMillin, “but it is more than troubling to put someone behind bars when we know the defendant was weighed with clearly unequal scales of justice.”
SB 300/HB 4529 seeks to balance the scales of justice by creating the Michigan Indigent Defense Commission (MIDC) – a 15-member commission appointed by diverse authorities with the power to develop and oversee the “implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are consistently delivered to all indigent adults in this state.” The MIDC will have authority to investigate, audit and review the operation of local county right to counsel services to “assure compliance with the commission minimum standards, rules and procedures.” These standards will be consistent with the majority of the American Bar Association, Ten Principles of a Public Defense Delivery System, including: independence of the defense function, reasonable caseloads, early appointment of counsel, and, training and supervision, amongst others. Perhaps most importantly, all new moneys for meeting standards will come from the state and not the counties. For a more detailed analysis of the reform package, click here.
What it takes to achieve comprehensive reform
The passage of the reform bill is the culmination of many, many years of hard work by many advocates and organizations. Simply put, the reform would not have been possible without each of these efforts:
Much of the credit for the reform should be directed to the State Bar of Michigan. The State Bar has been a consistent and strong voice for reforming Michigan’s broken indigent defense system for decades, including dedicating an entire edition of its monthly magazine to the state’s public defense problems as far back as 1992. Under the leadership of its executive director, Janet Welch, the State Bar fought to get a legislative approval of a statewide assessment of indigent defense services to document the problems the State Bar knew existed (SCR 39 of 2006), the creation of a Governor’s Advisory Commission on Indigent Defense in 2011, and were the primary lobbyists on the bill. The State Bar also spent considerable amounts of time educating legislators, judges and other criminal justice stakeholders, as evidenced by the efforts of their current and former Directors of Governmental Relations, Peter Cunningham and Elizabeth Lyons.
Indigent defense reform is easier for policymakers to understand if they can put a face to the problem. For years, The Innocence Project has been dedicated to exonerating the wrongfully convicted through DNA evidence and working to prevent future injustices. Their work in Michigan, including such high-profile cases as Eddie Joe Lloyd and Ken Wyniemko, served to humanize the systemic indigent defense deficiencies while demonstrating that wrongful convictions cost taxpayers more in the long run than investing on the front end to get it right the first time. The Eddie Joe Lloyd story, in particular, is very compelling and is re-told in The Constitution Project’s new video Defending Gideon, which not coincidently was shown to key lawmakers in the run up to vote on indigent defense reform.
The Michigan Campaign for Justice is a broad-based coalition of Michigan individuals and organizations that took the message of indigent defense reform to every corner of the state, educating newspapers, civic groups and criminal justice stakeholders on the problems. They continued the work of humanizing the problem in their seminal report the Faces of a Failing Public Defense System.
However, all of this advocacy work may not have moved policymakers to action without the litigation efforts of the American Civil Liberties Union (ACLU). In February 2007, the ACLU filed the class action lawsuit, Duncan, et al v. State of Michigan, on behalf of all current and future indigent defendants charged with felonies in three Michigan Counties: Berrien, Genesee and Muskegon. Though these three counties are the focus of the complaint, the ACLU acknowledges that the types of harms suffered by indigent defendants “are by no means limited or unique” to just the three counties. As the original complaint details, the State of Michigan has done “nothing to ensure that any county has the funding or the policies, programs, guidelines, and other essential resources in place to enable the attorneys it hires to provide constitutionally adequate legal representation.” With no state funding or oversight, most Michigan county indigent defense systems are “seriously under-funded, poorly administered, and do not ensure that indigent defense providers have the tools necessary to do their jobs.” There can be little doubt that SB 300/HB 4529 were a direct attempt to not only fix the problems but to perhaps stem the still active lawsuit. Click here, for a re-cap of the Duncan lawsuit.
The importance of government-led study commissions
All of these advocacy efforts culminated in the creation of the Governor’s Advisory Commission on Indigent Defense by Governor Rick Snyder via Executive Order on October 13, 2011. Getting a commission of respected, high profile people in a state to study the indigent defense crisis is often the key to reform – and Michigan is no different. The 6AC had the privilege of providing technical assistance to the Commission under contract to the State Bar of Michigan. In our experience, we have yet to go to a systemically deficient indigent defense state where the criminal justice stakeholders are consciously trying to deny a poor person’s right to counsel. It is more often the case than not that the deficient system simply grew over time to the point where those closest to it simply do not have the ability to see how far off the mark from Gideon the indigent defense system has fallen. When someone from the outside points out their problems, it is only natural for stakeholders to at first lash out, say there is no problem, or otherwise close ranks. That is why it is necessary to have well-respected people to engage the issue for changes to occur.
The recent reform in Michigan was the recommendation of key members of the Michigan Governor’s Advisory Commission on Indigent Defense. The Commission idea worked for several reasons. First and foremost, it was not loaded up with true believers. That is, Governor Snyder appointed people of substance from all perspectives (prosecutors, judges, defense attorneys, clients, and victim’s rights advocates) and from across the political spectrum. The eventual legislative leaders of reform were conservatives who believe in small government, but who also came to understand that the Sixth Amendment is one of the areas where government is needed to protect the individual from the potential tyranny of unchecked law enforcement. It was only because they struggled with the issue and debated the issue that the consensus reform recommendations were adopted by the legislature.
The steady march forward
Governor Snyder has two weeks to sign the indigent defense reform bill once it lands on his desk (usually within a few days of legislative passage). When he does, Michigan will become the 21st state to adopt a statewide commission approach to indigent defense. (Click here for an accounting of states using the commission approach.) But, in many respects, as difficult as the road to legislative reform was, the path to successful implementation of reform will be that much longer. “Think of Michigan’s approach to indigent defense as a large ship going the wrong direction for 50 years,” said District Judge Thomas Boyd. Judge Boyd was a member of the Governor’s commission and a leading voice for reform. “This bill, when it becomes law, represents the ship turning around. We still have a long journey back to a sensible system.”
Senator Caswell agreed that Michigan is now pointing in the right direction. The passage of the bill gives the people of Michigan the “mechanism in place to set standards while allowing flexibility in how best to localize those standards,” he said, noting that he and other legislative leaders are committed to a “steady march forward” to seeing the bill properly implemented.
The successful implementation of the reform depends upon some key next-steps. The appointing authorities must make strong recommendations to the Governor for each of the MIDC’s 15 commissioner-positions. The MIDC will then need to secure appropriate resources to hire a competent executive director and staff. As it drafts and promulgates statewide standards, the MIDC must demonstrate careful adherence to the ABA Ten Principles. State money will need to be forthcoming to allow county-based systems to meet the MIDC standards. And attorneys will need to be trained, evaluated and supervised to change the culture that has existed in the state, and new leaders will have to be identified and made part of the system.
Despite the hurdles, Michigan can meet the promise of Gideon. As representative McMillin noted, “as a former county commissioner, I know county commissioners don’t get re-elected because they ensure indigent defense services are well funded. I do know that they are judged critically on how well they fund the sheriff and county prosecutor. And so, the MIDC is, in a real way, there to ensure the indigent defendants are allocated enough resources to ensure they are given a fair shot in court.”
* Update: the Michigan House approved SB 300 by a vote of 102-7.