Indefensibly Shortchanged Justice

June 23, 2008
Detroit Free Press

IN OUR OPINION

Indefensibly shortchanged justice


Scandalously low pay for court-appointed attorneys and a lack of state standards and oversight have made Michigan a McJustice state -- with expedience stressed over upholding a fundamental constitutional right.

The criminal justice system works when truth emerges from the adversarial efforts of a competent prosecutor and vigorous defense. It fails miserably when an outgunned and underpaid public defender is effectively encouraged to cut corners.

A just released report requested by the Legislature in 2006, examining public defense in 10 sample counties, should force an overdue fix.

"A Race to the Bottom," the title of the study conducted by the National Legal Aid & Defender Association and released last week by the State Bar of Michigan, found that defense attorneys routinely lack the time, training, investigators, experts and resources to prepare cases adequately. Others are appointed to cases for which they are not qualified. Many criminal defendants never speak to an attorney.

In a jab at sacrificing due process to speed, Ottawa County workers and attorneys refer to the time of district court arraignments as "McJustice Day," the report said.

Find a statewide solution

Fixing the problem will cost money, but very little compared to the $2 billion a year that Michigan spends on prisons. Getting it right at trial time is especially important today, when appeals courts and the Michigan Supreme Court practically rubber-stamp criminal convictions.

The system cannot be fixed by the hodgepodge of poorly funded county programs for indigent defense. Michigan must establish state standards and oversight of its public defense system -- and ensure uniform and adequate funding to counties.

As it stands, counties provide discount justice with either low-bid contracts or fixed compensation for exams, pleas, motions and other legal tasks, regardless of how many hours court-appointed lawyers spend on them. That practically forces attorneys to take more cases than they can handle or settle for pay comparable to fast-food workers.

Michigan ranks near the bottom -- 44th -- among states in per-capita spending on public defense. It is one of only seven states that provide no state money for public defenders at the trial level. Altogether, Michigan counties spend about $74 million a year on indigent defense. They would have to spend $50 million more to rise to the national average.

A matter of rights, not just money

From a purely fiscal standpoint, this is a mess almost begging for a class-action lawsuit that could cost the state plenty. But more basically, budget problems cannot be an excuse for curtailing constitutional rights. Louisiana is in no better shape than Michigan, yet legislators in that Katrina-ravaged state last year passed comprehensive reforms on indigent defense that include quadrupled funding.

"When people understand that one of our cherished constitutional rights is in danger, they find a way to come together and fix it," said David Carroll of the National Legal Aid & Defender Association.

His report compared the deficiencies of Michigan's system with the notorious Scottsboro Boys case in Alabama in the 1930s, the first right-to-counsel case in America. It involved nine black youths who were falsely convicted of rape and all but one sentenced to death. Eventually, after an international outcry, all were freed.

High profile exonerations of people such as Eddie Joe Lloyd, wrongly imprisoned for 17 years for rape and murder, expose cracks in Michigan's criminal justice system. But the National Legal Aid & Defender Association report shows flaws that are also wide and systemic. Ensuring that counties meet constitutional standards for indigent defense is primarily a state responsibility -- one that Michigan Legislatures and governors have, for decades, shamefully shirked.

 

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