Costly conundrum: How to defend Michigan’s poor

(file photo)


GRAND RAPIDS, Mich. (WOOD) — Studies show Michigan is among the worst states in the country at protecting the constitutional rights of poor criminal defendants. New statewide standards are expected to change that, but the cost of the fix could be problematic.

Under initial proposals, bringing indigent defense up to new minimum standards would cost an additional $87 million, which counties and courts expect to come from the state coffers. That total is sure to shrink as the plans are reworked and reviewed, but lawmakers will likely be asked to come up with tens of millions of dollars to better defend the poor in court.

“Everybody has the constitutional right to have a lawyer when they are accused of a crime, even if they can’t afford it,” said Michael Puerner of Ada, the chairman of the Michigan Indigent Defense Commission. “It’s hard to debate that people charged with a crime are entitled to things like meeting their lawyer early in that process, and having a confidential place to gather, and to make sure that that lawyer is properly trained to represent them.”

The Michigan Indigent Defense Commission was created by lawmakers in 2013 after a series of studies showed state systems were not providing a constitutional defense for poor suspects. The commission has created eight minimum standards lawyers and defense systems will be required to meet.

While the final four are still being reviewed, the first four standards were approved by the Michigan Supreme Court in 2016 and include:

  • Minimum education and training, including continuing education for lawyers assigned to represent the poor.
  • Lawyers must interview a jailed client within 72 hours of being appointed, and as soon as possible if the client is not in jail. Courts and jails must provide a confidential meeting space for lawyers and their clients.
  • Lawyers must use experts and investigators when appropriate.
  • Defendants have the right to counsel clients at all critical stages of the case, including during their initial court appearance and arraignment.

ROLLING OUT THE PLAN

A total of 132 Michigan courts and counties submitted plans on how they will meet these first standards. The commission reviewed all of the plans and voted on each.

The panel rejected 31 of the proposals, many of which did not adequately explain how to meet one or more of the standards. Eight plans, including the one submitted by Montcalm County, requested funds for the local prosecutor’s office. The commission decided in December that those expenses would not be allowed.

Lawmakers can’t force communities to follow the new requirements without providing additional funding. Each plan lists how much was being spent when the Michigan Indigent Defense Commission Act was passed in 2013. Any expenses beyond that amount are supposed to be covered by the state.

So far, 15 plans have been approved by the commission, including those submitted by Muskegon County and a combined proposal by Allegan and Van Buren counties. Those approved plans would need the state to provide $6.5 million to cover the added expenses.

JUSTIFYING THE COST

The commission has sent back most of the submitted plans, approving the way they propose to meet the new standards but asking for more detail and justification for the requested funding.

“It’s important that we have saleable plans,” said Puerner, whose commission will have to justify the expense with lawmakers.

“The question will be how much money will they (the commission) recommend that is required? It won’t be $87 million,” said Rep. Rob VerHeulen, R-Walker, who is the vice chair of the Michigan House of Representatives Appropriations Committee.

“We probably do not have as much flexibility in this area as we do in other areas of spending, and that’s because of the constitutional obligation,” VerHeulen added.

Lawmakers’ hands may also be tied by how the law is written when it comes to funding.

The law states:

“If the MIDC determines that funding in excess of the indigent criminal defense system’s share is necessary in order to bring its system into compliance with the minimum standards established by the MIDC, that excess funding shall be paid by this state. The legislature shall appropriate to the MIDC the additional funds necessary for a system to meet and maintain those minimum standards…”

Many believe the word “shall” means lawmakers have to appropriate whatever money the commission says is needed to enact the standards.

“I voted for the bill, along with virtually everyone else,” VerHeulen said. “As I was thinking about this (interview), I was thinking, well, the legislators are elected by the people to make those financial decisions and we’re not simply a rubber stamp for an appointed commission.”

VerHeulen says lawmakers are going to take a hard look at the proposals and funding request. He expects some funding will be approved, but he doesn’t know how much.

“We must make sure we comply with the Constitution. But I think in complying with the Constitution, if you put your mind to it, there will be ways that we can find to do it at a lower cost,” he added.

Puerner and the Indigent Defense Commission know they will have to defend anything they approve.

“We’re talking about constitutional rights of our citizenry,” he said. “We also need to know that we can carry those plans before the Legislature with a defendable request that they be funded.”

WHAT’S NEXT

The second set of standards are up for public comment until Feb. 1 and include:

  • Independence from the judiciary branch.
  • Workload/caseload limits for lawyers.
  • Minimum qualifications based on case type.
  • Minimum pay rates.

The finalized guidelines will then be submitted to the Michigan Supreme Court for approval, which could happen as soon as this summer. If the standards are approved by the court, communities would submit another plan to show how they would meet the new requirements, and how much it would cost.

INSIDE THE PLANS

West Michigan courts and counties initially requested an additional $22.6 million to meet the first four standards. Only two of those proposals have been approved:

MUSKEGON COUNTY

Current spending: $662,294 (three-year average)
New total spending: $2,019,473
Grant money requested: $917,735
Summary: Muskegon County’s public defender office was used as a model by several systems. The Muskegon plan calls for five more contract lawyers, who will ensure clients are met within the required 72 hours. The plan also calls for renovating office space for the additional lawyers.

ALLEGAN/VAN BUREN COUNTIES

Current spending: $2,746,775 (three-year average)
New total spending: $529,260
Grant money requested: $2,217,515
Summary: This combined proposal for court systems in Allegan and Van Buren Counties calls for the creation of a regional public defender office to handle cases in both Allegan and Van Buren counties. However, the current roster of private attorneys who handle indigent defense cases will also be used.

Additionally, the commission rejected two other West Michigan counties’ plans:

MONTCALM COUNTY

Current spending: $202,000 (three-year average)
Proposed total spending: $805,094
Grant money requested: $603,094
Summary: Montcalm County’s plan called for the hiring of a public defender administrator who would oversee a roster of private attorneys. The initial plan was rejected by the commission because it included money for the prosecutor’s office.

BRANCH COUNTY

Current spending: $151,377 (three-year average)
Proposed total spending: $677,818.50
Grant money requested: $525,818.50
Summary: Branch County would create a public defender office which would handle 55 percent of cases; local attorneys would handle the other 45 percent of cases. Branch County’s proposal was rejected because the jail’s only confidential meeting space has glass separating the lawyer and client. The commission decided after reviewing the Branch County plan that face-to-face confidential meeting space must be available at jails and courthouses.

The plans for nine other West Michigan counties were approved, but the commission sent them back for clarification about why the requested funding was needed. They include:

KENT COUNTY

Current spending: $2,631,311.28 (three-year average)
Proposed total spending: $4,826,623.21
Grant money requested: $2,167,724.13
Summary: Under the proposal, five of the six Kent County district courts would come together to share costs and resources to meet some of the new standards. One arraignment attorney would be stationed at the 63rd District Court in Grand Rapids Township and use a video system to meet with defendants at the county jail. This attorney would initially represent clients charged in 63rd District Court, as well as courts in Wyoming, Grandville, Walker and Kentwood. After arraignment, a more permanent counsel would be assigned to handle the rest of the case. The costs of this system would be split evenly among the five courts.

61st District Court in Grand Rapids would have two arraignment attorneys posted at the county jail who would meet with clients in person before arraignment.

Felonies would continue to be handled by the public defender’s office.

The plan also requests $734,731.21 for reopening a section of jail meeting rooms that closed in 2014, and adding staff to escort and supervise inmates’ meetings with lawyers.

“We need five deputies in order to make these plans work,” Capt. Chuck Dewitt of the Kent County Sheriff’s Department said.

The commission has approved Kent County’s plan to meet the standards, but has concerns about some of the administrative costs included in the proposal.

KALAMAZOO COUNTY

Current spending: $1,176,974.54 (three-year average)
Proposed total spending: $5,191,600
Grant money requested: $4,014,625.46
Summary: The Kalamazoo County plan calls for the creation of a nonprofit public defender office to represent indigent defendants. Among the expenses, $70,000 would go to creating confidential meeting space inside the current courthouse. Kalamazoo County has plans to build a new courthouse, and meeting space would be included in that proposal.

Kalamazoo County’s plan also calls for $700,000 in jail renovations. Sheriff Richard Fuller says the jail would have to move its detective bureau to prevent lawyers and their clients from meeting next to detectives. Kalamazoo County would also add deputies to escort inmates to and from attorney meetings.

The commission is asking for more information about the proposed jail renovations, but not saying that it will be rejected. They have asked if there are less expensive alternatives.

OTTAWA COUNTY

Current spending: $923,087 (three-year average)
Proposed total spending: $2,803,751
Grant money requested: $1,889,353
Summary: Ottawa County proposes switching to a new public defender’s office, which will be housed in a former community mental health building in Grand Haven.

CALHOUN COUNTY

Current spending: $696,542 (three-year average)
Proposed total spending: $1,193,338
Grant money requested: $1,322,931
Summary: Calhoun County proposes creating a new public defender’s office. The county would have to renovate some space to accommodate the new office.

ST. JOSEPH COUNTY

Current spending: $556,400 (three-year average)
Proposed total spending: $669,550
Grant money requested: $113,150
Summary: St. Joseph County plans to continue using its local contract attorneys, but may consider moving to a public defender in the future. The county would use empty courtrooms for attorney-client meetings instead of building new meetings rooms at the courthouse. However, St. Joseph County has expressed a lot of concern about the cost of getting inmates to and from these meetings, noting that they are already eliminating some staff amid budget cuts.

BARRY COUNTY

Current spending: $226,323.33 (three-year average)
Proposed total spending: $670,296.67
Grant money requested: $449,962.84
Summary: Barry County’s initial proposal called for the hiring of a director to oversee a list of contracted private attorneys.

IONIA COUNTY

Current spending: $218,603 (three-year average)
Proposed total spending: $369,097
Grant money requested: $258,349
Summary: Ionia County would create a new public defender’s office and a hallway behind the courtroom to allow lawyers and clients to access a room for confidential meetings.

The commission expressed concern about these construction costs. Some commissioners asked if the meetings could be held in the public defender’s office itself, which would be located in the courthouse.

NEWAYGO/OCEANA COUNTIES

Current spending: $197,076.43 (three-year average)
Proposed total spending: $686,263.40
Grant money requested: $489,186.97
Summary: Under the combined proposal, the counties would share an indigent defense administrator and two arraignment attorneys. After arraignment, the cases would be handled by local contract attorneys overseen by the administrator.