This may be because many local and state governments already underinvest in indigent defense, whether they contract it out or have a team of public defenders. A recent lawsuit against the state of Missouri, for example, argued that “a too-small cadre of lawyers is burdened with too many cases and, as a result, [has] too little time to properly defend their clients in court,” as Matt Ford described it in March. “With so little time spent on each of their many clients, lawyers are often unable to conduct interviews, review evidence, or pursue avenues of investigation that could be crucial to their defense.”
In some areas, including New Orleans, defendants wait in jail for months as their names move up on the waiting list for a court-appointed attorney. According to a 2009 survey, the most recent one taken, only 10 states provided low-income defendants lawyers ahead of arraignment. Another 10 never did. The rest varied by jurisdiction.
Since that survey was published, some states have started to change their policies. That includes Boyd’s home state of Michigan, where each jurisdiction decides when lawyers are assigned. In 2013, Republican Governor Rick Snyder appointed a commission to study how the state handles indigent defense. “We’re solving a problem that we’ve had in Michigan for far too long,” he said then. Three jurisdictions there have run pilot programs where defendants have counsel at their first court appearance. In Ingham County, where Boyd is, 13 percent of the cases scheduled for arraignment were dropped before the hearings even took place, because of out-of-court conversations between defense attorneys and prosecutors. Overall, the mean case length dropped by 20 percent, from about 32 days to about 26 days.
In May, the indigent-defense commission announced mandatory counsel at arraignment as part of a revised set of standards for legal representation. The panel plans to offer a bill to the state legislature, likely early next year, codifying the right. There has been little objection to the commission’s recommendations, except for a lawsuit from populous Oakland County. “We believe all defendants deserve competent counsel,” said the county’s lawyer, Keith Lerminiaux. But the way “the state went about it is unconstitutional,” he argued, claiming that an executive-branch commission requiring changes to the judiciary violates separation of powers.
As for the (typically thorny) issue of funding, Jonathan Sacks, the commission’s executive director, said money for additional lawyers would come from the state budget, and that legislators will consider the matter in their next session.
If Michigan manages to fund universal representation—without overburdening attorneys—it will have succeeded where others have failed. Just because there’s political will to institute reforms doesn’t always mean there’s money to do so. Reformists in and outside of government often focus on the back end of the criminal-justice system: getting people out of prison. But there will still be people funneling into those facilities if jurisdictions can’t fund the front end—providing adequate defense.
“Giving defendants a lawyer, treating them with respect, and honoring the Constitution gives them more confidence in what we’re trying to do,” Boyd said. “That starts with giving them the respect they deserve the minute they walk in the door.”