Remarks of Chief Justice Kelly
U.S. House Judiciary Committee
Briefing on Solutions to the Indigent Defense Crisis
Wayne State University
Monday, December 14, 2009
Good morning.I think it’s very fitting that this discussion should be taking place in Michigan. Although the indigent defense crisis may be particularly acute here, in many ways Michigan is a microcosm of what’s happening throughout the country. I thank Representative Conyers for organizing this discussion.
These days, you can hardly turn on the radio or television, peruse online news, or pick up a newspaper, without finding fresh and bleak evidence of the economic crisis. Friday’s Detroit News, for example, reported that United Way of Southeastern Michigan is receiving more than 7,000 requests for food per month, more than double the number of requests made by this time last year. Other social service agencies are reporting a huge spike in requests for food, as people struggling with job loss turn to charity so that they can save what little money they do have for mortgage payments or utilities. The unemployment rate in Detroit is at least 35 percent, with the Metro Detroit’s region at roughly 25 percent. The faltering economy has increased the number of income-eligible clients for civil legal services in Metro Detroit from 400,000 to 500,000.
With so many living on the brink of poverty, the need for indigent legal services is acute. Access to the courts and to legal redress shouldn’t be a matter of privilege or grace. But unfortunately, for far too many of our fellow citizens, access to justice is unavailable because it’s unaffordable. And our current system of indigent criminal defense does little to remedy that.
Consider the findings of a 2008 report entitled “Race to the Bottom: Speed and Savings over Due Process” by the National Legal Aid and Defender Association. That report concluded that Michigan's public defense system is one of America's worst. In terms of spending on defense services, Michigan ranks 44th out of the 50 states. In large part, that’s because the counties, which are responsible for funding indigent defense services, are under tremendous financial pressures. Other issues the report identified include the absence of representation standards and lack of consistency in the appointment process from county to county – in fact, the executive summary commented that “the level of services varies from county to county – giving credence to the proposition that the level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed instead of the factual merits of the case.”
Other disheartening findings, as described in the executive summary, include “lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest;failure of defenders to properly prepare for trials or sentencings; attorneys violating their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused; and, a lack of sufficient time, training, investigators, experts and resources to properly prepare a case in the face of a state court system that values the speed with which cases are disposed of over the needs of clients for competent representation.” The report adds that, “In misdemeanor cases, people of insufficient means are routinely processed through the criminal justice system without ever having spoken to an attorney.”
Michigan’s problem has attracted attention from other quarters. This past spring, for example, the Congress convened a hearing to focus on Michigan's failing public defense system, and Michigan's alone.
Why should we care about this, some might ask, when there are so many other urgent problems demanding our attention? What of it if public defenders have such enormous caseloads that they pressure their clients to take pleas, rather than go to trial? Why should it matter to us that an overloaded indigent defense system means that defendants in criminal cases get a poor defense or no real defense at all? After all, aren’t all these people guilty anyway? Don’t they belong locked up?
Sadly, there are many people who think like that. Under their mindset, indigent defense is a luxury, the first thing to be jettisoned if funding or resources are lacking.
But when we fail a fellow citizen accused of a crime, we risk failing the Constitution and our justice system. As Chief Justice Taft wrote in 1926, “The real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a hearing by independent courts to each individual … but if the individual in seeking to protect himself is without money to avail himself of such procedure, the Constitution and the procedure made inviolable by it do not practically work for the equal benefit of all. Something must be devised by which everyone, however lowly and however poor, however unable by his means to employ a lawyer and to pay court costs, shall be furnished the opportunity to set fixed machinery of justice going.” [Preface to Smith and Bradway, LEGAL AID WORK IN THE UNITED STATES (1926)].
On a more pragmatic level, a system that shovels ever-higher numbers of people behind bars without true due process is a system we can’t afford. You may be familiar with a report that the Pew Center on the States released earlier this year regarding the high rate, and high costs, of incarceration in the United States. That report, entitled “One in 31: The Long Reach of American Corrections” yields some amazing statistics: as of the end of 2007, the incarcerated population reached 2.3 million with an additional 5 million on probation or parole. When we combine those numbers, we find that one in every 31 adults, or 3.2 percent, is under some form of correctional control. State corrections costs now top $50 billion annually and consume one in every 15 discretionary dollars. In Michigan, $2.18 billion was spent on corrections in fiscal year 2008, and as of the end of 2007, one in 27 adults was under some form of correctional control – prison, jail, probation, or parole. But while we are paying more for imprisonment, that isn’t translating into better public safety; in fact, as the Pew report states, “…we are well past the point of diminishing returns, where more imprisonment will prevent less and less crime.”
How we arrived at this point is due in part to policy choices the states have made, including locking up offenders beyond the age when they would likely have given up their criminal ways – an expensive approach that yields little benefit. As political scientist James Q. Wilson has observed, “Age slows us all down, mugger and victim alike.” “Three strikes” statutes are another contributing factor.
But surely, lack of adequate defense is also a contributing factor. When we have defendants who take pleas or have inadequate representation because their counsel is overburdened or lacks expertise, when defendants attempting to represent themselves fail against an expert prosecutor, the likely result is that we have people in prison who simply don’t belong there – and whose incarceration is a burden for taxpayers. By not funding legal services adequately, we really are being penny-wise and pound-foolish.
I don’t pretend that there are easy answers to the indigent defense crisis. Ideally, our long-term goalshould be a comprehensive integrated legal services system in Michigan, which would provide appointed counsel in all adult criminal and juvenile matters. The critical question, of course, is where we find the money to make all this possible. Other challenges include addressing the issues cited in the NLADA report, such as consistent standards across courts, access to counsel, adequate assigned counsel fees, and assured quality of representation.
It’s not going to be easy to meet these challenges, but the alternative is to turn our backs on the central premise of our justice system, that of equal access to the courts. As Justice Hugo Black wrote in Gideon v Wainwright, the 1963 U.S. Supreme Court decision which established the right to counsel in felony cases, “Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth." I hope that today’s discussions will be the first step toward making that obvious truth an equally strong reality. Thank you.
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