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Duncan et al. v. State of Michigan (Amicus Brief)

The Brennan Center, along with the National Association of Criminal Defense Lawyers, the NAACP Legal Defense & Educational Fund, and the Constitution Project, filed an amicus brief in a case before the Michigan Supreme Court case that seeks to address the constitutional insufficiency of the state’s indigent defense system.

Published: August 11, 2010

In Brief:  On March 29, 2010, the Brennan Center joined the National Association of Criminal Defense Lawyers, the NAACP Legal Defense & Educational Fund, and the Constitution Project in filing an amicus brief before the Michigan Supreme Court in Duncan et al. v. the State of Michigan.  The case was a constitutional challenge to the “systematic deficiencies” of Michigan’s indigent defense system.

Procedural History:  On March 29th, the Brennan Center and others filed an amicus brief with the Michigan Supreme Court, urging the Court to allow the case to proceed.  Previously, both the trial court and the Court of Appeals had ruled that the alleged deficiencies in Michigan’s indigent defense system would, if proven, violate the plaintiffs’ constitutional rights.  On April 30th, the Michigan Supreme Court issued an order denying the State’s request for summary disposition and allowing the case to proceed.  However, on July 16, 2010, upon the State’s request for reconsideration, the Court reversed its previous denial of summary disposition in a 4–3 decision, dismissing the case on the grounds that the plaintiffs’ claims were not justiciable. 

Questions Presented:  In this case, the plaintiffs questioned the constitutional adequacy of Michigan’s provision of defense services to indigent defendants.  The amicus brief co-authored by the Brennan Center responded to the State’s assertion that prospective relief is not appropriate in this instance and to the State’s request for summary disposition.

In Detail:  In this case, the plaintiffs argued that Michigan’s provision of criminal defense services to poor people accused of crimes was constitutionally insufficient, and sought declaratory and injunctive relief.  The Brennan Center, the National Association of Criminal Defense Lawyers, the NAACP Legal Defense & Educational Fund, and the Constitution Project filed an amicus brief to the Michigan Supreme Court in support of the plaintiffs, urging the Court to allow the case to proceed.  

The amicus brief argued that Michigan’s deficient indigent defense system creates an “imminent and irreparable risk” that defendants will be denied their constitutional right to effective representation.  Systematic deficiencies in the provision of defense services, such as a dearth of supervision and training for attorneys, a lack of standards for defendants’ eligibility for state-provided counsel, and no standards governing attorneys’ caseloads, mean that “eligible defendants are regularly denied counsel altogether” and that when counsel is provided, that representation is oftentimes inadequate.  The negative effects on defendants are wide-ranging and severe.

Moreover, the brief argued that many of the harms that defendants suffer due to absent or ineffective counsel occur at the pre-trial and pre-conviction stages of their case, making the plaintiffs’ request for prospective relief necessary and appropriate.  These harms cannot rightly be remedied after-the-fact by post-conviction proceedings, the brief argued, making judicial involvement important and necessary.

Lastly, the brief contended that the harms of the state’s inadequate indigent defense system are borne disproportionately by those of color—African Americans are almost five times more likely to rely on appointed counsel than whites.  This disparate impact reaps negative consequences on the community at large, as “the disproportionate rates of incarceration have made the image of black criminality a social reality.”  A cycle of distrust and hostility is perpetuated by communities’ perception of two systems of justice, “one for people with means and an inferior system for the disproportionately minority poor.”

After initially ruling that the case could proceed, on July 16, 2010 the Michigan Supreme Court reconsidered its previous ruling and, in a 4–3 decision, ordered the case dismissed. The Court concluded that the substantive claims made by the plaintiffs were not justifiable, arguing that there is no constitutional precedent specifying how the state should provide adequate counsel for indigent defendants, and that the judiciary cannot interfere with funding for legal services and the indigent defense system.  In dissent, Chief Justice Kelly, joined by Justices Cavanagh and Hathaway, argued that “[t]oday’s order slams the courthouse door in plaintiffs’ face for no good reason.”

A June 2008 report by the National Legal Aid & Defender Association documents the “constitutional crisis” created by Michigan’s indigent defense system.  Download the report here: