Michigan prosecutors push back as state allocates millions for indigent defense

LANSING — The budget state lawmakers approved last week includes tens of millions of dollars in new funding to provide qualified lawyers for Michigan residents who can't afford one, as Michigan continues a multiyear reform effort to comply with requirements of the U.S. Constitution.

But prosecutors are now pushing back, saying the state is tipping the scales of justice too far in favor of accused criminals.

"There's a great imbalance right now," said Kalamazoo County Prosecutor Jeffrey Getting, a Democrat who is president-elect of the Prosecuting Attorneys Association of Michigan.

"Indigent defense is funded at a far, far, far greater rate than prosecutors' offices are."

State funding for indigent defense roughly doubled from $87 million in 2019 to $172 million in 2023, according to House Fiscal Agency records. The state budget for 2024, approved by lawmakers on Wednesday, included more than $72 million in additional funding.

In 2022, more than 229,000 accused people were represented by appointed attorneys at their Michigan arraignments, compared with just 1,000 who were represented before the Michigan Indigent Defense Commission was created by statute in 2013, records show. The commission sets indigent defense standards for items such as determining who qualifies for appointed lawyers, attorney compensation, attorney training, hiring of investigators and experts, and independence from the judiciary

Getting said that in some counties, particularly smaller or less well-funded ones, assistant prosecutors have been leaving for indigent defense work. And in all counties, it's become much more difficult to fill vacancies, he said.

In Kent County, Republican Prosecuting Attorney Chris Becker agrees. Prosecutors, who are funded on a county-by-county basis and receive no funds directly from the state, are also slammed by the need to review large volumes of criminal expungement record requests, due to recent changes in state law, but have received no additional resources, he said.

He said his office has one of the highest starting salaries for assistant prosecutor, at $72,000, after the county increased it from $67,000 in the last year, but he is still getting few applicants for open positions.

"We warned them ... this was going to happen," Becker said.

Around the state, starting salaries for assistant prosecutors range from about $45,000 to $82,000, Getting said. Prosecutors handle far more cases than public defenders do, but are getting outnumbered in terms of staff, and it is starting to impact the ability to win convictions, he said. He cited the thousands of felony cases his office reviews that don't result in charges, paternity cases, most misdemeanors, and cases of abuse and neglect, as examples.

Public defenders are filing more motions and the clients they represent are less willing to agree to plea deals, he said.

But Getting acknowledged there is a lack of supporting data for such claims, partly because years of criminal case data were skewed by the pandemic.

John Shea, an Ann Arbor attorney who has done indigent defense work and has been a member of the Michigan Indigent Defense Commission since the administration of former Gov. Rick Snyder, said he can't help but chuckle a bit when he hears prosecutors complaining about more defense motions and more trials.

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"That's exactly what's supposed to happen when you have an adequately funded defense bar," said Shea, who stressed he was speaking as an individual and not on behalf of the commission.

For far too many years, court-appointed attorneys representing indigent clients had so many cases on their plates that they saw few opportunities to do anything but cut plea deals, Shea said.

Changing that is a good thing, and a federal constitutional requirement, he said.

Shea said he is not without sympathy for prosecutors who say they are underfunded, but said those prosecutors should seek more funding, not suggest that indigent defendants should get less. Nobody is getting rich on indigent defense, he said.

State Rep. Phil Skaggs, D-East Grand Rapids, chairs the Senate Appropriations Subcommittee on Licensing and Regulatory Affairs, which handles indigent defense funding.

"I would just say it's imperative in Michigan that everyone has access to justice," Skaggs said minutes after the House gave final approval to the 2024 budget.

"Real justice costs money and the state will continue to make sure that those who are indigent, defense attorneys, prosecutors, judges, and law enforcement officers have the tools they need."

Getting acknowledged there is more to the problem of attracting new prosecutors than the issue of pay, given the social justice movement that rose to national attention following the 2020 murder of George Floyd, an unarmed Black man, by Minneapolis police.

But he said those interested in social justice should look to careers as prosecutors, which he described as the first line of defense for those accused by making decisions about whether charges the police have recommended will be filed.

Getting said thousands of the recommended felony charges his office reviews each year do not proceed.

"My office is clearing far more people every month than any defender's office gets off in a year," he said.

Contact Paul Egan: 517-372-8660 or [email protected]. Follow him on Twitter @paulegan4.

This article originally appeared on Detroit Free Press: Michigan prosecutors push back amid indigent defense funding boost