Of Lawsuits and Reform

The lack of adequate indigent defense funding in Michigan has led to a class-action lawsuit (Duncan v. Granholm and the State of Michigan), public hearings, testimony before the U.S. Congress, and a recent bill to establish an equitably funded, state-wide public defense system. Michigan H.B. 5676 was introduced Dec. 10, 2009, and, according to the The Michigan Citizen:

It would be known at the Public Defense Act and establish an independent Public Defense Commission which would promulgate a budget, and a State Office of Public Defense and Appellate Defense Bureau with regional subdivisions. It would also prohibit excessive caseloads for defense attorneys (which currently average 750 across Michigan), require that those attorneys be trained and experienced, and provide salary equity with prosecutors, among other measures.

We here at PDR are the craziest kind of optimists: We truly believe that things can change for the better, and we get all exited when we read about a proposed defender system that is independent, adequately funded, prohibits excessive caseloads, and requires parity of pay with prosecutors. A cause of concern, though, is a press release from the ACLU regarding the issue:

For more than 30 years, state and local experts have reported on the deficiencies of Michigan’s public defense system, yet the state has done nothing to improve the situation. Recently, an American Bar Association report ... repeatedly cited Michigan for failing to meet the ABA Ten Principles, which are considered the fundamental criteria a system must meet to provide effective public defense.

Wait: "State and local experts have been aware that the system has been deficient for 30 years"--and they haven't been able to change it? They haven't even tried? "The ABA repeatedly cited Michigan for failing to meet the ABA Ten Principles?" ... but still no change?

The inability to change a broken public defender system doesn't come from a lack of knowledge that the system is screwed up, or because we are unaware of the tragedies that happen because of it, or because the "experts" can't figure out what is wrong--the inability to change comes from the lack of will to change.

The will to change may indeed come from the expense and embarrassment of the lawsuit filed by the the Michigan Coalition for Justice (whose members include the ACLU, NACDL, and the Brennan Center for Justice) which put the Michigan legislation in motion. PDR worries, though, that the results of the ACLU's lawsuit in Grant County, Washington might be a better prediction of the ability of a lawsuit to effect lasting and pervasive change.

The Grant County settlement led to a restructuring of the county's defender system, and the appointment of a court-appointed monitor. The Grant County lawsuit was an awesome achievement, but its hard-earned and imperfect results demonstrate the difficulty of public-defender reform, especially in a single, rural county. Problems similar to those existing in Grant County pre-lawsuit exist in surrounding rural counties, and have not been solved. In PDR's Washington county, we are still waiting for an office with leadership independent from county commissioners and judges, weighted case-load standards, adequate support and investigator staff, independent oversight, and an effective conflict-of-interest policy.

Where can the will to change come from? It should come from the people who care most about the issue--the people most affected by it. Who suffers the most tangibly from underfunded public defense? The indigent and us, the underfunded public defenders. Our clients are not the ones to forge this will. The will to change has to come from us--the public defenders who bear the brunt of the work and blame in an upside-down system. We have to forge the will to change the systems we work in, and then gain the knowledge, resources, and momentum to do it.