Gideon Alert: Michigan Civil Rights Commission resolution acknowledges failed defender systems as a civil rights issue

BY David Carroll on Wednesday, May 26, 2010 at 12:48 PM

On May 24, 2010, the Michigan Civil Rights Commission adopted a resolution stating unequivocally that the failing county indigent defense systems constitute a civil rights issue.  Interim Department of Civil Rights Director Dan Krichbaum (appointed after serving as Governor Granholm’s Chief Operating Officer) stated, “Michigan cannot afford a system of justice based on ability to pay, including the many disparate impacts that exist along with such a system.”

The same year that Gideon v. Wainwright was decided, the Michigan Constitution of 1963 created the Civil Rights Commission to investigate alleged discrimination against any person because of religion, race, color or national origin and to secure the equal protection of civil rights without discrimination.  Commission chair Matthew Wesaw, a retired 26-year veteran of the Michigan State Police, said, “The Commission was convinced that the costs of not providing effective counsel are indeed a civil rights concern.”  Highlighting the fact that failed indigent defense systems prevent efficient criminal justice planning, he added, “To an individual, the human impact, the human cost of ineffective counsel can be devastating.  The state, however, pays the costs to incarcerate thousands of individuals who may have been determined innocent, or received a lesser sentence had the system worked the way it should.”

The resolution concludes that the Eleven Principles of a Public Defense Delivery System, adopted by the State Bar of Michigan’s Representative Assembly in 2002, serve as the fundamental standards for a public defense delivery system to provide effective, efficient, quality, and ethical representation to those in criminal proceedings who cannot afford to hire an attorney.  The Eleven Principles mirror the ABA Ten Principles with one significant difference.  The 11th Principle states: “One function of an indigent defense system is to explore and advocate for programs that improve the effectiveness and efficiency of the criminal justice system and that reduce recidivism.”

The NLADA report on Michigan, A Race to the Bottom, noted how the systemic indigent defense deficiencies in Michigan prevented such effective criminal justice planning from occurring.  For example, in the district court of Grand Traverse County, approximately ten percent of all cases are for driving with a suspended license (DWSL).  The jail manager told NLADA representatives that two percent of the people in jail are there for DWSL charges.  Diverting these cases out of the regular prosecution system and establishing a program to help people regain their licenses could free funds for other far more serious defense purposes, avoid the need to appoint counsel, and help defendants maintain their jobs and avoid court costs and jail costs.  The prosecutor also noted that DWSL needs to be addressed, that “it's an economic issue,” and that most of the defendants have no other criminal record.  One of the judges told us the state's driver responsibility fees are so high that most people cannot pay them and many are caught driving again with a suspended license.  But with no effective advocacy on behalf of the clients who are most impacted by these policies, nothing changes.

Another area worth exploring in Grand Traverse County is the extensive use of probation for long periods of time, resulting in a number of probation revocations and jail sentences.  Our site team observed several probation revocation hearings where defendants appeared and were sent to jail without ever having talked to a lawyer.  Several people interviewed for the report indicated that the local motto for the resort community is: “Come on vacation, leave on probation.”