2008 Justice Forum
2008 Justice Forum
Public Defense Update
Happy Bill of Rights Day!
Bill of Rights Day, December 15, commemorates the ratification of the first ten amendments to the Constitution of the United States of America in 1791. These ten amendments were subsequently incorporated into the Constitution and became known as the Bill of Rights. The annual commemoration of Bill of Rights Day was proclaimed by President Franklin D. Roosevelt in 1941 to celebrate the 150th anniversary of the ratification of the rights that provide the foundation for our democracy.
On this 217th anniversary of the Bill of Rights, a profoundly important struggle is on all across the country to ensure that the right guaranteed in the 6th Amendment, that "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense", is upheld even in difficult economic times. From Miami to Detroit, from Grand Rapids to Columbus, Ohio, public defense attorneys, both in the public and private sectors, are struggling to ensure that their clients receive the time, attention and due process guaranteed them regardless of their ability to pay. And when good people of conscience cannot guarantee, through even the most arduous of labors, that the Sixth Amendment guarantees are fully upheld in the courtrooms of this country, what can they do?
For many in Michigan, the answer is increasingly to join the Campaign for Justice's efforts to reform Michigan's public defense delivery services. The Campaign staff and volunteers have been working to develop a broad-based nonpartisan coalition to seek long overdue legislative reforms since the release of the National Legal Aid and Defender Association report on our failing system. Our work will culminate in a media launch of the Campaign in January 2009. Many leading organizations and influential individuals are signing on to protect one of the most fundamental rights in the face of ever-diminishing local resources and budget cuts.
When we are asked why we believe reform is possible as belts are tightened in the current fiscal climate, we point to the state's constitutional mandate to protect our Sixth Amendment rights. There can be no equivocating about the state's responsibility to discharge its constitutional responsibilities. In addition, we point to the enormous human and fiscal costs of a failing system; the wrongful convictions, failure to identify systemic problems like the Detroit Police Crime Lab, high rate of sentencing errors, duplicative and inefficient delivery systems, and inability of defense counsel to investigate guilt or innocence or even help craft thoughtful approaches to reducing recidivism for adults and juveniles alike.
We know we have a great deal of work to do to generate the political will for reform, but the Campaign has put together a team of top professionals, including political strategists, media and budget experts. We will be launching a vigorous media and public education Campaign to ensure that this issue is high on policy makers' agendas.
The key to success, however, is something only you and your colleagues can provide. On December 15, please take time to reflect on your life work and its contribution to our democracy. We are holding regional briefings, trainings and presentations, so call or email Kat Birrell, program coordinator, at (517) 372-3050, kbirrell@michigancampaignforjustice.org, to sign up or, with questions or concerns.
Your voice, your advice, your expertise can make the difference in ensuring that we have a public defense system that is adequately funded, meets at least minimum national standards for effective public defense delivery systems and, therefore, fully upholds the vision of this nation's founders.
Happy Bill of Rights Day and Happy Holidays from your entire Campaign Team.
By Laura Sager
November 20, 2008
Public Defense Updates
On Sunday, November 9, 2008, a front page New York Times article "Citing Workload, Public Lawyers Reject New Cases," reported:
"Public defenders' offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor."
"Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point."
The article, which you can find by clicking here, drew from the recent National Legal Aid and Defender Association report that focused on our state, noting that "Michigan requires counties to protect the indigent without providing state funds, resulting in large disparities. In some counties, those charged with misdemeanors are not even offered a lawyer; in others, the judge hires one for a flat fee, creating a conflict of interest and incentives to skimp on defense..."
We should expect more state and national news on the dire consequences when states' public defense systems are inadequately funded and overwhelmed by staggering caseloads. This includes the news on the fraudulent test results from the Detroit crime lab. Our failing and fragmented public defense delivery system didn't have the capacity to quickly identify patterns of misconduct and challenge the ballistics reports. The human and fiscal costs of this failure will be enormous. However, the damage to the credibility of the Michigan justice system will be as difficult to repair.
We Are The Change We Seek
To paraphrase the President-elect, it will take some time to dig ourselves out of the hole we are in. And it will take as much focus, dedication and effort as citizens showed during the recent election, whatever their party affiliation. You have to show up for change to happen. The coming year presents both great opportunities and challenges for public defense reform-opportunities, because the need for change is finally clear; challenges, because we need to ensure that the dozens of new legislators understand that this reform is a constitutional mandate even in a fiscal crisis, a smart approach to more efficient use of taxpayer dollars, that will also increase public safety.
To start working for change sign up on the website, so we can keep you apprised of events, solicit your advice, and get your feedback. Events will move fast in the coming months so now is the time to take the first step. To keep you in the loop, the Campaign is putting together some new tools to help you stay up to date and get involved. You can call into a monthly Campaign update via phone, starting this November; we will start generating more email alerts in January; and our social-media-savvy members can visit the Campaign Facebook page and follow the Campaign via Twitter. We urge you contact the Campaign at info@michigancampaignforjustice.org or call the Campaign office at (517) 372-3050 with questions, concerns, information or offers to volunteer. Have a Happy Thanksgiving and plan for public defense change in 2009.
by Laura Sager
Director, Campaign for Justice
lsager@michigancampaignforjustice.org
September 4, 2008
A message from the Campaign for Justice director
The Michigan Campaign for Justice is in full swing this fall, following up the successful rollout of the National Legal Aid and Defender (NLADA) report on Michigan's trail level public defense system. The Campaign staff and volunteers are working with our partners, especially the State Bar of Michigan, examining how adequate statewide funding and national standards can be implemented in Michigan, meeting with key stakeholders, and keeping the media spotlight on the issue.
We want to particularly thank all of you who have taken an active role in the Campaign-from attending round table sessions, to speaking out in your communities or inviting Stephanie Chang or me to speak to a group, or to forward information, cases or suggestions.
You will continue to find ongoing excellent coverage of the media response to the report, Public Defense Task Force conference, and suggestions for assisting in the all-important task of coalition building at www.michigancampaignforjustice.org. If you have not yet signed up for the E-Alerts about the progress of the Campaign, now is the time to do so, as events will start to move very quickly.
When you visit our website, please take time to check out the section for volunteering. We have listed some talking points for you to use when encountering candidates asking for your vote. We can't begin to tell you how important it will be for candidates to hear that public defense reform is an important issue for their constituents. Please help by being our eyes, ears and - if you can contribute more- our voice. Just get in touch with Stephanie Chang, Campaign deputy director, at schang@michigancampaignforjustice.org, if you would like more information about what you can do to support the movement for reform.
The trouble with low-bid contracts
As events unfolded following the NLADA report release over the summer, a handful of local attorneys registered their objections to aspects of the report that criticized the growing use by cash-strapped counties of low bid flat fee contracts for public defense services.
Some attorneys who are providing the best possible services under these very difficult circumstances were understandable uncomfortable with the NLADA findings. Attorneys were forced to bid on contracts violating minimum national standards because the State of Michigan has failed to meet its constitutional duty to adequately fund indigent defense services. However, the State's dereliction of duty does not absolve counties from their obligations to provide defense services that meet national standards, nor does it remove the problems inherent in providing services under the terms of such contracts.
Flat fee contracts based primarily on cost considerations violate national standards on the effective provision of constitutionally adequate counsel to indigent clients. Those standards are embodied in the American Bar Association's Ten Principles for an Effective Public Defense Delivery System, a set of standards that 'constitute the fundamental criteria to be met for a public defense delivery system to deliver effective and efficient high quality, ethical, conflict free representation to accused persons who cannot afford to hire an attorney. (The ABA Ten Principles and the State Bar of Michigan's Eleven Principles, identical, except for the addition of the 11th or "Michigan Principle," are available online under Resources tab on the Campaign website.)
The Eighth Principle directs, "Contracts with private attorneys for public defense services should never be let primarily on the basis of cost; they should...provide an overflow or funding mechanism for excess, unusual or complex cases, and separately fund expert, investigative and other litigation support services."
The primary goal of fixed price contracting is not quality representation but limiting costs to counties. Flat fee, low bid contracts encourage attorneys to process cases quickly, to make up in volume what is lost in per case fees. Such contracts discourage attorneys from investigations, consulting experts or specialists, and/or from taking cases to trial.
That is why such contracts always create a conflict of interest between attorneys and their clients, in violation of well-settled ethical proscriptions compiled in the Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, written by the NLADA and adopted by the ABA in 1985 (also on our website under Resources).
When counties take the lowest bidder in a fixed price contracting process, they are effectively making it clear that the highest priority is cost containment - not the constitutional obligation to the clients. Ironically, resulting system costs - wrongful convictions, sentencing errors, and increased recidivism - can make low bid fixed price contracts a penny-wise and pound-foolish proposition for local units of government.
David Carroll, lead researcher for the NLADA report, noted that Michigan was the first system in which the team of experts found the system devolving to the flat rate low bid contracts, even as they were conducting their assessments.
We know that our counties are facing daunting realities. The unfunded mandate to provide indigent defense services shifts a vital, constitutional obligation onto local units of government ill-equipped to adequately fund, monitor and oversee compliance with national standards. While counties vary as to how they have me the challenge over the last 150 years, it is clear that they are now at the breaking point. It is long past time to lay the responsibility for funding trial level defense services at the door of the State of Michigan, where it has belonged for years.
The vast majority of attorneys are doing the best they can to discharge their constitutional obligations to the men, women and children they represent. However, rather than bristle at the conclusions of the NLADA report, we hope these competent attorneys, rendered less effective by the system they are forced to operate within, will join forces with the Campaign to ensure that the State provides adequate statewide funding and that national standards are implemented and enforced.
In the meantime, attorneys can urge their county officials to ensure that such contracts at minimum include standards regarding qualifications, training, caseloads and the use of investigators and expert witnesses.
Ethical county commissioners would never award a construction contract to a bidder - lowest or otherwise - that did not set certain standards for ensuring public safety. A public defense contract should be no different. Failing to ensure a quality public defense puts public safety at risk and leaves the county open to enormous liabilities.
Your feedback, comments, anecdotes related to this article are welcome.
Laura Sager
lsager@michigancampaignforjustice.com
June 30, 2008
A message from the Campaign for Justice director
 The statewide movement for reform of Michigan's public defense delivery system officially kicked into high gear during the week of June 16, with the State Bar of Michigan's long-awaited release of the National Legal Aid and Defender Association (NLADA) report on Michigan's public defense system, followed by the well-attended Public Defense Task Force Conference.
David Carroll, NLADA's director of research and evaluation, presented his research team's findings to the legislature, to members of the judiciary, to other top public officials and concerned organizations in a series of meetings and media interviews sponsored by the State Bar. The round of presentations included briefings of the House and Senate Judiciary Committee meetings and a keynote speech at the June 19 Public Defense Task Force Conference.
Carroll made it clear that the problems with Michigan's public defense delivery system are both profound and systemic –that even the most seasoned, competent and ethical defense attorneys can not function effectively when they are denied the time, resources, and procedural protections required to comply with the minimum national standards for public defense services. (See home page for materials and video.)
Hard-hitting editorials across the state are asking the state to step up to its responsibility to ensure that the poor receive Constitutionally adequate representation. In-depth radio reporting made the link between public safety and systemic failures that lead to wrongful convictions – jailing the innocent while the real perpetrators go free.
NEXT STEPS – TAKE ACTION!
The State Bar of Michigan release of the NLADA report, and Public Defense Task Force Conference, extensive media coverage and a thoughtful response from policy makers have all set the stage for change – change that many of you have worked for over several decades. However, it will take a great deal of collective effort to make the leap from defining the problem to solving it. Many of you shared your valuable insights and suggestions at the Task Force Conference. We will be reviewing and developing an action plan based on your contributions.
But many have yet to join the Campaign. Ensuring the legislature enacts comprehensive reform -- both adequate state funding and a system that complies with national standards – will take a statewide movement where everyone's effort counts.
With your help, we can ensure that June 2008 marked the beginning of comprehensive public defense reform in our state!
What you can do today:
• Letters to the editor from all over the state will help keep the momentum going and dispel myths about the report. If you are willing to write letters, assist with outreach, or volunteer in any other capacity, please contact Stephanie Chang at schang@michigancampaignforjustice.org or (313) 310-5666.
• If you have not done so, go to the Campaign website at www.michigancampaignforjustice.org and read the executive summary or full NLADA report, conference materials, news reports and sign up as a volunteer. Tell us how you think you can help make a difference.
• Leave your feedback on events and the report, share your ideas, and put yourself on the list for Campaign announcements.
• Talk to your friends and colleagues about the report. Share their responses and your own anecdotes about the current system. Ask them and others to sign up for Campaign for Justice Alerts. Tell us whom you think we should be meeting with.
The Campaign will use the website and alerts to make sure you are both informed and involved as, together, we push for long overdue reforms. Don't hesitate to also call us at the Campaign office at 517-372-3050, to ask questions, make suggestions, or request information.
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