A Race to the Bottom: Speed and Savings over Due Process

On June 18, 2008, NLADA released its report, A Race to the Bottom: Speed and Savings over Due Process: A Constitutional Crisis, which found that the state of Michigan fails to provide competent representation to those who cannot afford counsel in its criminal courts.  The state of Michigan’s failure to fulfill its constitutional obligations has produced myriad county public defense systems that vary greatly in defining who qualifies for services and the competency of the services rendered. Michigan ranks 44th in the nation for per capita public defense spending ($7.35), behind such states as Alabama and Georgia.

The NLADA report also found that residents are routinely tried in district courts (Michigan’s misdemeanor courts) without access to any legal counsel whatsoever, calling into question the reliability of Michigan's criminal justice system.  NLADA is asking state lawmakers to take ownership of this problem and immediately address funding and administrative deficiencies.

Despite the U.S. Supreme Court's decision in Gideon v. Wainwright establishing that states are constitutionally required to provide for public defense, Michigan's current system requires counties to use their own budgets.  With many counties at their breaking points, Michigan courts increasingly value speed over quality, leading many advocates in the Ottawa County criminal justice community to describe the system as providing “McJustice.”  The report found that counties across the state failed to meet the majority of the American Bar Association's Ten Principles.  In particular, many residents facing misdemeanor trials never have the opportunity to meet with a public defender, and, when they do, the meetings are often last-minute and non-confidential.

The findings were based on a year-long study of 10 counties chosen by a Michigan-based advisory group consisting of representatives from a number of state and county legal offices and groups, including the State Court Administrator's Office, the Prosecuting Attorneys Association of Michigan, and the Criminal Defense Attorneys of Michigan, as well as the state Supreme Court and trial-level judges.  NLADA, in partnership with the Michigan State Bar Association, conducted the study at the request of state lawmakers.

David Carroll, NLADA research director, testified concerning the report’s findings before both the Michigan House and Senate Judiciary committees, made presentations to the Michigan Judges Association, and met with the Michigan Black Caucus and the Michigan Lawyers caucus.  Over the two years following the report’s release, NLADA spoke about the report findings to other groups that included the State Bar’s House of Delegates and the Prosecuting Attorneys Association, as well as numerous local television, radio and press interviews.  The report has been a focal point of a new grassroots coalition -- The Campaign for Justice – that has leading conservatives and liberal organizations, judges’ associations, faith based organizations, and business leaders calling for dramatic reform.  Even the “Blue Print for a Safer Michigan” produced by the Michigan Prosecuting Attorneys Association, Michigan Law Enforcement Association, Chief of Police, and Association of Counties calls for a significant increase in indigent defense funding. A legislative work group was formed in 2009 to begin drafting legislation to reform Michigan’s indigent defense system.  NLADA continues playing an advisory role to local policymakers and advocates.

Since the release of A Race to the Bottom, Michigan has become the poster-child for the nationwide right to counsel crisis.

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Publication Date: 2010