The right to legal counsel in criminal defense cases is embedded within the very fabric of our country’s foundation. Along with Americans’ right to freedom of religion and speech, the right to representation is fundamental and clearly outlined in the Bill of Rights, the final clause in the Sixth Amendment: “and to have assistance of counsel for his defense.”1
The sentiment is similarly outlined in the Michigan Constitution passed in 1835 and since amended: “In every criminal prosecution, the accused shall have the right to . . . have the assistance of counsel for his or her defense.”2
While this idea is considered a fundamental American right, the onus of making it a reality fell on the states. With the passing of Public Act 109 of 1857, Michigan became one of the first states in the country to codify the right to legal counsel (and even specified compensation for such counsel) for defendants.3
This landmark law predated federal-level policy and court discussions by several decades — and its significance is being recognized this month as the State Bar of Michigan’s 43rd Michigan Legal Milestone.
The bronze plaque highlighting the historic development in Michigan’s indigent defense system will be unveiled Wednesday, Sept. 21, in Allegan, the hometown of Public Act 109’s sponsor, Sen. Gilbert Moyers. Michigan attorneys and the public are invited to attend. For more information, visit michbar.org/milestones.
A NATIONAL PERSPECTIVE
While it now may seem unfathomable to consider a time without the codified right to counsel, Public Act 109 of 1857 was trailblazing because the Sixth Amendment, at least initially, applied only to federal prosecutions.
It took another 75 years for the U.S. Supreme Court to rule in support of defendants’ right to counsel in Powell v. Alabama — the so-called “Scottsboro Boys” case in which nine young Black men were sentenced to death for the alleged rape of two white women. The decision, however, focused more squarely on the 14th Amendment and the right to due process and, more narrowly, on the right to counsel specifically in capital cases.4
However, the 1932 Powell decision was essentially reversed in 1942 in Betts v. Brady. In Betts, the Supreme Court ruled that the right to due process does not specifically include the rights found in the Sixth Amendment and state governments were not obligated to provide counsel — even in death penalty cases.5
By most standards, the right to an attorney was not fully settled at the federal level until 1963, when a unanimous Supreme Court ruled in Gideon v. Wainwright that the Sixth Amendment applied to state prosecutions through the incorporation doctrine and specifically required states to appoint attorneys for criminal defendants who cannot afford to do so.6 The right to an attorney was further buoyed the following year when in Escobedo v. Illinois, defendants were given right to counsel from the moment they are taken into custody.7
The fact that Michigan created and followed that standard more than a century prior to Gideon shouldn’t come as a surprise considering the influence of attorneys in state government at the time.
Sen. Moyers introduced the bill to provide payments for court-appointed attorneys in January 1857, shortly after taking office. Prior to being elected to the state Senate, Moyers served as prosecuting attorney for Allegan County.8
After the bill’s introduction, it was greeted by more friendly attorneys turned politicians: Sen. George Jerome of Detroit served as chair of the Senate Judiciary Committee9 and Rep. Henry A. Shaw (who would go on to be elected speaker of the House) chaired the House Judiciary Committee.10
Exactly one month after its introduction, Governor Kinsley S. Bingham, whose early forays into public service included the distinction of serving as Livingston County’s first probate judge,11 signed the bill into law on Feb. 14, 1857, guaranteeing access to counsel for Michigan’s indigent defendants while also guaranteeing payment to the attorneys taking those assignments — $25 for murder cases, $10 for other felony cases, and $5 for misdemeanor cases.12
REFORM OF 2013
The 1857 law, while significant, also bore an inherent weakness:
“The People of the State of Michigan enact that an attorney appointed by a court to defend a person indicted for any offence on account of such person being unable to procure counsel, shall be entitled to receive from the county treasury, on the certificate of the presiding judge that such services have been duly rendered …” (emphasis added)
Gideon v. Wainwright established that it is the state’s obligation to provide for indigent defense services,13 but since PA 109 of 1857 was passed, that financial burden was placed solely on county governments.
“There were several places where it was inadequately funded and lots of places where it was very poorly funded,” said Hon. James Fisher, a former chief judge of Barry County Trial Court and a former prosecuting attorney who helped lead Michigan reform efforts. “Funding has always been the crux of the problem.”
The push to reform the state’s indigent defense structure stretches back to at least the mid-1970s, when state Supreme Court Chief Justice Thomas Kavanagh appointed a Defense Services Committee of the State Bar of Michigan to review the entire trial and appellate procedure for legal representation of indigent defendants.14
More directly, the “Eleven Principles of a Public Defense Delivery System” — adopted by the State Bar Representative Assembly in 2002 — specifically called for state funding to ensure access to qualified representation.15
In 2008, a report by the National Legal Aid and Defender Association (NLADA) noted several deficiencies in Michigan’s public defender system. Most notably, funding was left up to counties and the lack of resources meant that — despite a constitutional right to competent legal representation — Michigan could not guarantee such counsel would be available.
In February 2009, a group called the Michigan Campaign for Justice issued “Michigan’s Public Defense Report Card,” which gave the state failing grades for both funding and structural integrity.16 The organization was comprised of a coalition of Michigan judges and attorneys, civil rights organizations, and criminal justice advocates.17
“I was a judge at the time, and most judges were not on board,” Fisher said. “There was concern that if it was run with no local input, municipalities still wouldn’t have lawyers present when they needed them.”18
In January 2011, the State Bar of Michigan Judicial Crossroads Task Force, comprised of 29 leaders from the bar, business, civic, and political communities, issued its report.19 The task force’s Access to Justice Committee did not mince words in its findings:
“Michigan has tolerated an indigent defense system so lacking in resources that assigned counsel can only occasionally provide the effective assistance of counsel guaranteed by the U.S. and Michigan constitutions, causing large downstream costs and the risk of costly litigation.”20
A few months later, Gov. Rick Snyder appointed a 14-member Indigent Defense Advisory Commission to recommend changes to the system and named Fisher as the chair of the bipartisan group.21 The commission’s work resulted in House Bill 4529 and Senate Bill 301, which were signed into law on July 1, 2013, establishing the first statewide standards for indigent defense in Michigan and creating a foundation for fair and adequate funding statewide.22
Fisher would become the first chairman of the Michigan Indigent Defense Commission in 2013 and continues to serve on the commission today. In 2019, the commission received its first appropriation — $86.7 million — to distribute to local court systems to help them comply with minimum standards for appointment of defense counsel.23
Today, the commission has a full-time staff including an executive director and regional managers located across the state.24 It distributed nearly $130 million for indigent defense in the 2021 fiscal year.25
The funds support a variety of resources. In addition to ensuring there are always attorneys present at arraignments for those who request one, it has also allowed counties to offer investigative services and expert witness services to attorneys while providing social workers for people in the legal system with underlying problems, Fisher said.
“It has been a remarkable success,” Fisher said. “We have lots of openings for new attorneys, we have public defender offices that have opened across Michigan. It has been quite a sea change.”
MICHIGAN LEGAL MILESTONE
To celebrate the selection of PA 109 of 1857 and the roots of Michigan’s indigent defense system, the State Bar of Michigan will unveil a bronze plaque recognizing the law’s importance at an event at 5:30 p.m. on Wednesday, Sept. 21, at The Silo, located on 1071 32nd Street in Allegan. The event will feature:
- Chad Catalino, Allegan/Van Buren Public Defender Office.
- Peter Cunningham, State Bar of Michigan executive director.
- Hon. James Fisher (ret.), current MIDC commissioner and former MIDC chair.
- Hon. Jacquelyn McClinton, 36th District Court judge.
- Susan Prentice-Sao, MIDC Western Michigan regional manager.
Michigan attorneys and the public are invited to attend the event. Registration is required and limited to the first 100 registrants.
For more information, visit michbar.org/milestones.