Michigan counties currently spend at least $108 million more on prosecuting people accused of a crime than they do on the constitutionally required public defense attorneys for Michiganders who can't afford their own lawyer.

That's according to a State Journal analysis of county financial records and of grant requests submitted by 78 counties to the Michigan Indigent Defense Commission. Commissioners are considering local governments' plans to meet new state standards for public defenders and the governments' requests for state money to help them do so.

The State Journal obtained copies of those reform plans last week through a Freedom of Information Act request.

Even if every dollar requested by those 78 counties were approved — which won't happen; the commission already rejected reform plans or budget requests from 26 court systems, forcing those governments to submit new plans — prosecutors in those counties would still collectively outspend public defenders by more than $26 million, the records show.

Court systems across 82 counties have submitted reform plans and budget requests totaling nearly $87 million to the commission, but the State Journal was unable to determine prosecutors' spending in four counties.

The plans mark the first time a real price tag has been attached to indigent defense reforms Michigan policymakers began working on in 2008, when a report ranked the state's system among the worst in the country.

It's a price tag that could rankle some lawmakers who've tried to cut taxes and spending in recent years. But to reform advocates, such as Indigent Defense Commissioner Tom McMillin, a former Republican lawmaker who helped write the 2013 law creating the commission, local governments' hefty ask reflects how "woefully underfunded" indigent defense is now.

"It literally means that they are admitting that they have sent many innocent Michigan citizens to prison," McMillin said in an email to the State Journal.

Prosecutors, meanwhile, while broadly supportive of the reforms, cautioned commissioners during a hearing in Lansing last week about bringing defense systems into parity with their offices. Prosecutors do more than defense attorneys, they said, including reviewing warrant requests and working with victims.

"We want to make sure these standards improve the criminal justice system as a whole, and maintain victims' rights," Matt Wiese, a Marquette County prosecutor and official with the Prosecuting Attorneys Association of Michigan, said at the hearing.

Eight court systems, including Eaton County, had asked the commission to give some money to prosecutors as part of their overall reform plan. Commissioners rejected those requests — which totaled more than $3.1 million — by instituting a policy against funding prosecutors.

Imbalance in the courtroom

As part of their grant requests to the commission, local governments had to calculate the average they've spent on indigent defense over the last three years. The state is required to fund any expenses beyond required that to meet the new standards.

Right now, the closest to evenly funded defense and prosecution systems are in Iosco County, which pays defense attorneys about two-thirds of the county prosecutors' office's expenses were last year. Crawford County spends 20 times more on prosecution than defense.

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Imbalance in the courtroom

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What counties spend on prosecutors doesn't include federal or state grants sent to prosecutors, who also benefit from the investigative capacity of the police agencies in their jurisdictions.

The underspending is reflected in the service poor defendants receive. A State Journal investigation last year found court-appointed attorneys — paid a fraction of what they make in the private sector — overwhelmingly negotiate plea deals instead of taking cases to trial. They rarely file motions challenging the prosecution or request independent experts to review the evidence against their clients.

Inadequate legal defense was a factor in nearly half of the overturned convictions in Michigan, according to the National Registry of Exonerations.

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Criminal defense attorney Patrick O'Keefe and professor of law at the University of Michigan Eve Primus discuss some of the issues facing the criminal justice system. Matt Mencarini, Justin Hinkley, Julia Nagy, Dave Wasinger/Lansing State Journal

The Indigent Defense Commission's standards are meant to improve such statistics.

Still, even if the commission fully funded local governments' requests, prosecutors would still spend more in 44 of the 78 counties in which the State Journal could make a comparison. Monroe County's system for defense attorneys, for example, would still receive only a quarter of what the county spent on prosecutors last year.

Some counties' requested defense costs would exceed prosecutors' budgets largely because of one-time expenses for courthouse renovations or start-up costs for building a new public defender's office.

Some counties are trying to bring both sides of the courtroom in line. Kalamazoo County, for example, spent about $4 million on its prosecutor last year and requested $4 million in ongoing costs to run a new public defender's office with salaried attorneys and two full-fledged investigators.

Next, the fight for funding

The Indigent Defense Commission hopes wrap up its review of the reform plans by Jan. 8. Any governments whose plans are rejected would have 30 days to submit a new plan.

After that, all eyes are on the Legislature. Gov. Rick Snyder hopes commissioners will give him a figure he can roll into his 2019 budget request, which he'll present to lawmakers in February.

"The governor wants to ensure all Michiganders have access to sufficient legal representation," spokeswoman Tanya Baker said in an email to the State Journal. "The proposals are being reviewed to determine the appropriate nature of the requests, both financially and operationally."

Lawmakers are sure to have a number of questions of their own, state Rep. Laura Cox, R-Livonia, chairwoman of the House Appropriations Committee, said last week.

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Spending on indigent defense

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She said she's met repeatedly with the commission and its advocates in recent years. She understands the need and the state's constitutional responsibility, but she said the Legislature needs to ensure local governments answer for the millions they're seeking.

"I'm keeping an eye on it and I want to make sure that people aren't just able to submit something and there's no overview and deliberation over these submissions," she said. "I want to make sure we're not building just to build."

The 2019 budget takes effect Oct. 1, so counties likely won't see any money until then.

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