Michigan Courts Fail to Provide Competent Representation for the Poor

Kat Aaron

From Investigative Reporting Workshop and our content partner, New America Media:


 Fifty years ago, an eloquent drifter from Florida changed the American justice system. Clarence Earl Gideon, accused of breaking into a pool hall, was tried without a lawyer in Bay County, Florida, in 1961. Convicted after representing himself, he petitioned the Supreme Court for a new hearing and ultimately won not just his own freedom but a new right for all criminal defendants: the right to counsel. It’s thanks to Gideon and his case that if a defendant cannot afford a lawyer, one will be provided.


More than 12 million people were arrested in America in 2011. Most of them were charged with a crime and many were poor, qualifying for a public defender. The American Council of Chief Defenders suggests that each public defender handle no more than 400 misdemeanors or 150 felonies per year; many carry caseloads two to three times those guidelines, and some much more than that. There are simply far, far more poor people needing lawyers than there are public lawyers to represent them. Despite the Supreme Court’s ruling in Gideon v. Wainwright, adequate counsel for poor Americans is far from guaranteed.


Detroit’s 36th District Court handles about half a million misdemeanor cases a year. Most of those defendants will be represented by a publicly funded attorney, and most will exchange few words with the person who is officially their lawyer. In Wayne County, which encompasses Detroit, there are both traditional public defenders, whose full-time job is representing the indigent, and appointed counsel, lawyers named by the judge to represent all needy defendants in court that week.


Traffic cases make up a lot of the court docket on any given day. People drive everywhere in the Motor City, and they drive without licenses, without insurance and without the ability to pass a breath test. The judge will call the names of everyone with a drunk driving charge, say, and they all line up in front of the dais. The court-appointed counsel will explain to the group that they’re all going to pay a fine and may have to do community service. There’s no apparent opportunity to have an individual conversation, to contest the charge or explain the individual circumstances of the arrest. There’s no clear warning that these people are taking a plea deal, no hint that they are pleading guilty to a misdemeanor charge that will stay on their record forever.


The courtrooms at the 36th District are, technically, fulfilling their constitutional mandate to provide counsel to people who can’t afford it. That the representation does not typically involve any meaningful interaction between defendant and attorney is standard, in Michigan and many states. The Gideon decision didn’t spell out how states should go about providing indigent defense. Michigan wound up with a hodgepodge of systems: some public defender offices, some appointed counsel and some flat-fee contracts. In a flat-fee contract model, attorneys bid to represent all comers in a given courthouse for the year, and the lowest bid wins. The system incentivizes lawyers to spend as little time with each defendant as possible; the more clients they have, the less they earn per case. The appointed counsel model also has its critics, who say that lawyers may be quick to push a plea or may hesitate to request a trial, for fear of angering a busy judge and losing future appointments.


Michigan is one of just seven states that provide almost no state funding for trial-level indigent defense, leaving the counties holding that particular fiscal bag. County income derives mainly from property taxes, and property values in Michigan have been in free fall for years. Per capita spending on indigent defense is not regularly tracked, but in 2012, Michigan spent just $7.38, ranking the state among the lowest in the nation. Simply put, “Michigan fails to provide competent representation to those who cannot afford counsel in its criminal courts,” according to a 2008 report by the National Legal Aid and Defender Association.


The indigent defense system in Michigan is so ill-funded and so overburdened that the American Civil Liberties Union of Michigan sued the state. The case, Duncan v. Granholm, was a class action representing defendants facing felonies in three Michigan counties, where, according to the suit, the state has failed to meet the requirements of Gideon. It was filed in 2007, and for six years, the state tried to stop the case from proceeding. In April, the ACLU won yet another decision from the state court of appeals, allowing the case to move forward.


The suit sought to “prove what everybody knows, which is that the criminal defense system is broken for poor people in Michigan,” said Michael Steinberg, legal director of the ACLU of Michigan.


As the suit wound its way through the courts, the state government was assessing the problem. Gov. Rick Snyder named an Indigent Defense Advisory Commission in 2011, and the group released a set of recommendations last summer. Legislation to improve the system was introduced in April 2013 and was signed into law in July.


The law establishes a permanent commission, which will create minimum standards for public defense, including allowing defenders to control their caseloads. The law also provides funds to counties that aren’t able to meet the standards alone. And because the law should remedy the crises that sparked the ACLU's suit, the group has voluntarily dismissed its case. The changes won’t go into effect immediately, though. The courts won't see the impact for another two years, estimates Marcela Westrate of the Michigan Campaign for Justice, a coalition that backed the bill.


The law is a big step, but implementation of the new standards is contingent “upon the appropriation of sufficient funds,” according to the bill. Michigan’s economy is climbing out of the basement, but budgets are still lean. The ACLU's Steinberg says they'll be monitoring the law's progress closely.


Detroit has its own financial problems, distinct from those of the state. And the 36th District Court, which is in and partly funded by the city of Detroit, is not insulated from the city's fiscal woes. Even before Detroit filed for bankruptcy on July 18, the court was found to be significantly over budget for last fiscal year, spending close to $36 million when the city council allocated $31 million. A report commissioned by the state found that the court was rife with problems: overstaffed, inefficient, reliant on outdated technology and hostile to the City Council.


While criticizing the leadership of the court, the report also acknowledged that the municipal and regional context play an important role.



"It is our contention that the current economic crisis confronting the City is the new 'norm' and not merely an aberration in the history of the City to ride out until times are better," the report's authors wrote. "The erosion of the City’s tax base, loss of its population, and increase in blight and dwelling abandonment has been occurring over several decades. Without extraordinary interventions, it likely will continue into the future."


Within days of the report’s release in May, the state appointed Judge Michael Talbot as “special judicial administrator" to get things under control at the 36th District. Less than a month later, the city filed for bankruptcy. The court and its users are feeling the impact. More than 100 staff members have been laid off. Kenneth King was removed from his post as chief judge, although he will still sit on the bench there. The union representing the remaining court staff rejected a one-year contract offer from Talbot, which would have cut pay and reduced benefits. The labor conflict may come to a head soon, with a deadline to resolve the contract set for July 31.


The budget shortfalls at the court and its city are not likely to improve the quality of legal representation at the 36th District any time soon. But it's not just in Detroit that public lawyers are drowning in a sea of defendants, pressured to compromise years of clients’ lives in order to stay afloat. As in all budgetary matters, there are two sides to the equation. If the problem is an imbalance between the supply of lawyers and the demand for their services, one approach is to increase the number of attorneys. Another, of course, is to reduce the number of criminals.


“I think that has to be part of the answer,” said David Carroll, executive director of the Sixth Amendment Center, a group that advocates for the right to effective counsel. “We can never spend our way out of this problem.”


While more money would help the defense system, fewer criminals would, too. Reducing the number of criminals requires not a shift in behavior, but a shift in how people think about crime, punishment and redemption. That reassessment may now be under way, in Michigan and across the country. There is growing recognition that the current system of impossible caseloads, over-criminalized rule books and overflowing prisons is incredibly expensive, unsustainable — and avoidable.


America will not have to become a nation of angels. Legislatures and advocates are exploring how to shift some acts from criminal offenses to ticketable ones. Organizers are teaming up with public defenders, bringing people power where money is short. And lawyers are trying to address the issues that led people into the justice system in the first place. None of that is without cost, but with states spending more than $50 billion a year on corrections, it may be an investment worth making.


Read more about the holistic defense movement, community organizing strategies and the bipartisan push for decriminalization at the Investigative Reporting Workshop.


Photos: New America Media; All Things Michigan (Flickr, Creative Commons).

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