I picked up my daughter, Amy, early Saturday morning from an overnighter at her friend’s church. Halfway home I noticed her staring vacantly out the window. “A penny for your thoughts,” I said, and she responded that she was thinking about garage sales. The truth is, my brain was also mulling over something that had captured many of my thoughts recently.
Proponents of the Indigent Defense bill (HB 5804) have been attempting to rush this legislation through the Michigan House of Representatives over the past few weeks. The well-intentioned, seriously flawed bill attempts to improve statewide access to one of our 6th Amendment rights which guarantees, among other rights, the “Assistance of Counsel for his defence (sic).” This right is as “American” as mom, hotdogs at the ballpark, and apple pie at Thanksgiving. And anyone who has watched Law & Order or other crime dramas knows that “if you cannot afford an attorney one will be provided to you.”
The effort to improve the indigent defense system comes largely from efforts of the Michigan Campaign for Justice per the indigent defense systems study published by the National Legal Aid and Defenders Association in 2008.
HB 5804 is intended to improve provision of legal counsel to indigent persons across the State. Proponents of the bill cite many problems with the current system that range from the structure of how the service is provided to ethical and moral issues that have emerged in some areas. One of the stated goals is to remove judges from the process of selection and approval of the attorneys who provide counsel to indigent persons. Possible concerns include the fear that judges will select rookie attorneys who will work for less money and will somehow be more malleable for the judges to direct court results. It is also alleged in some parts of the state that judges collect campaign contributions from those awarded indigent counsel work. The “fix” presented in HB 5804 is to take judges out of the process and to create a mostly independent State commission empowered to have the final say on indigent attorney services. It is anticipated that the commission would base its requirements closely upon the American Bar Association’s Ten Principles of a Public Defense Delivery System. While the system overseen by the Judges meets most of these standards, there are some to which our local judges are philosophically opposed.
The proposed legislation in its current form would likely increase the cost of providing these services in Ottawa County by close to a half-million dollars. Ottawa County Judges already have a robust system for the selection and evaluation of attorneys to represent indigent clients. This annual review process sometimes results in the removal of attorneys and the addition of new attorneys. The process is already accountable to the Michigan Supreme Court via its administrative arm the State Court Administrative Office.
The reality is that the problems that HB 5804 purports to fix are not problems in Ottawa County. The legislation will end up costing taxpayers more and could very well have a negative impact on the quality of indigent legal services. Ottawa currently pays the highest hourly rate for indigent defense counsel in Michigan and has a waiting list of qualified attorney’s desiring this work. Contrast this to other areas of the State where very low hourly rates many times attract only recent law school graduates and perhaps attorneys with insufficient experience to perform competently. At the same time, Ottawa cost of indigent legal counsel per capita is only $5.58 compared to the estimated State-wide average of $7.25 per capita. This speaks well of a large population with a relatively low crime rate. We have also been blessed by the quality of judges elected from our Ottawa County electorate. We simply and thankfully do not have ethical and moral issues among our Judges who steadfastly work to maintain the balance between the public good and individual right to have a fair trial. One of the ways our Judges work to maintain this balance is by appointing competent counsel, many of whom have 20 to 30 years of experience working with indigent clients. In fact, Chief District Judge Brad Knoll worked this docket for more than 25 years prior to becoming a Judge.
Specifically, these are our concerns regarding HB 5804 and the speed with which it is moving through the Michigan legislature:
- The bill could cost the County nearly $500,000 in additional expense.
- The bill could require Judges to adhere to some of the ABA principles that they philosophically oppose. Just two examples of this include a requirement that the County pay for continuing legal education for indigent counsel and caseload limitations would be artificially placed on the number of cases that indigent counsel could handle at any given time. Because of the relatively high years of experience held by attorneys performing indigent legal service in Ottawa County, they are able to handle more cases per attorney than could an inexperienced attorney.
- Assignment of attorneys to indigent work would be assumed by the new State Commission and greatly reduce the role of our County Judges and the Ottawa County Bar Association who actually know much more about the local attorneys who apply to do this work.
- The Michigan Association of Counties estimates that the legislation could cost the State $120 million and not the $70 million currently projected and this does not include cost to counties.
- The proposed legislation has not been fully vetted by either the House Fiscal Agency or the Senate Fiscal Agency, which exist for this very purpose.
- The legislation went directly from the House Judiciary Committee to the full House and we believe it should have gone to the House Appropriations Committee so it could figure out how to fund the legislation.
Circuit/Probate Court Administrator Kevin Bowling and I have testified before the House Judiciary Committee and the Senate Judiciary Committee in the past few weeks. It is likely that this legislation will continue its race through the House but we believe the Senate will likely be more deliberative and cautious as they should.
We very much support reform of the system to ensure indigent legal services in areas where there is disrepair. However, we do not support efforts to fix these broken counties through a system that drags down counties that are doing a great job. Effective counties should be exempted through objective criteria such as prison commitment rates; percentage of not-guilty verdicts and dismissals; client satisfaction; reversals on appeal; cost per case; or complaints for ineffective assistance of counsel.
Silence resumed for a few minutes after Amy’s answer and then out of the silence her voice from the back seat said, “Dad, where’s my penny?” As I dug a penny out of the ash tray and handed it back to her, I thought, “Where’s my penny, indeed.”