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Victory! Michigan Turns the Corner on Public Defense Reform

Tanya Greene,
Advocacy and Policy Counsel,
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July 1, 2013

Hooray for Michigan! We now have a reason to cheer for Michigan that has nothing to do with the prowess of its sports teams. Last month, the Michigan legislature passed bills creating its first-ever statewide public defense system and, today, Governor Rick Snyder signed the bills into law.

The new Michigan Indigent Defense Commission Act creates for the first time in Michigan’s history a statewide structure for delivery of public defense services. The law provides for an independent defense function (not completely free from politics and conflicts of interest, but much closer!), county-based systems that are responsive to caseload concerns and allow for resourced, experienced, quality representation of counsel, and regular oversight and support to ensure the right to counsel is protected.

How fitting for Michigan to take this major first step in aligning its practices with the requirements of the United States Constitution during this 50th anniversary year of the Gideon v Wainwright decision, which guaranteed counsel to indigent defendants facing prison time. Better late than never!

The success of this effort is testimony to the value of integrated multi-tiered advocacy:

Public education: The ACLU, in coordination with a broad range of local allies, including the Michigan State Appellate Defender Office, Crossroad Bible Institute, Michigan State Bar, League of Women Voters, and the Innocence Project, who make up the Michigan Campaign for Justice, has engaged in advocacy work for almost a decade in educating the public, legislators, county officials, judges, and numerous others about the import of constitutional public defense. In 2011, the ACLU released Faces of Failing Public Defense Systems: Portraits of Michigan’s Constitutional Crisis, detailing how improperly-funded and -designed indigent defense can result, and has, in wrongful convictions. Last year, the ACLU produced a short video profiling two innocent men who were convicted of horrific crimes they did not commit, one spending 30 years in prison in error and one a teenager sentenced to life in prison without parole.

Litigation: In 2007, the ACLU, with local counsel and Cravath Swain and Moore, filed a lawsuit in pursuit of public defense reform in the state. The constant pressure of the lawsuit itself, as well as the chance that the judiciary might fashion a remedy, helped legislators understand the value of designing their own reform template.

Policy Advocacy: Several pieces came together to make a successful whole. Our coalition’s advocacy work resulted in the Governor’s creating an Advisory Commission in 2011 to study the indigent defense problem in the state. This study led to recommendations in 2012, which were incorporated into the legislation passed and signed in 2013.

The bi-partisan nature of this effort cannot be understated. Legislative leadership from both sides of the aisle, including Representative Tom McMillan, a Tea Party Republican, admittedly unsure about the issue at the start, and Representative Ellen Cogan Lipton, a progressive Democrat became stalwart allies of reform efforts to ensure the government would not take an individual’s liberty unjustly.

This new legislation is a momentous milestone. Our next steps are equally critical. Creation of the permanent indigent defense commission, its membership and staffing; development and implementation of specific regulations governing public defense delivery; and monitoring of the process and players leaves significant work for advocates and policymakers in the coming months and years.

And with Pennsylvania the only remaining state in the United States that doesn‘t provide any funding toward public defense, Michigan beats Pennsylvania in more than sports as well…

Want to know more about the current state of indigent defense? Check out Gideon’s Army, a new film portraying the lives of three public defenders in the South who are part of Gideon’s Promise, a comprehensive model that emphasizes client-centered values, on-going trial advocacy training, and community-building for defense counsel.

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