Public Defenders and People With Disabilities

Frankly, I’ve given almost no thought to our criminal justice system nor to public defenders who are assigned by courts to defend people who are charged with a crime and cannot afford to hire an attorney. I should, among other reasons, because people with disabilities are significantly over represented in jails and prisons compared to the general population. Although about 20 percent of the general population lives with a disability (most of them are older folks), one study found that "about 37% of jail inmates, 31% of state prison inmates, and 23% of Federal prison inmates report a disability of some sort." I thank God that people, including Christians, are thinking about public defense, including my friend Dr. David Schuringa who is the former president of a ministry, Crossroad Bible Institute, that disciples people in prison.

Dave was appointed by Michigan’s governor to be a Commissioner on the Michigan Indigent Defense Commission, whose task has been to examine and revise standards for public defense. I know very little about the law, but I do believe strongly that people who have been accused of crimes should have good representation at trial. If they cannot afford an attorney, then the attorney assigned to them should work closely with their client so that the client is represented well and ultimately so that justice is served. Sometimes a client’s disability can stand in the way of a fair trial.

Not long ago, Dave called me to ask whether I might comment on one particular standard for public defenders (or “counsel”) that the Commission:

D. Client status:
2. Where counsel is unable to communicate with the client because of language differences, counsel shall take whatever steps are necessary to fully explain the proceedings, including seeking the appointment of an interpreter to assist with pre‐trial preparation, interviews, investigation, and in‐court proceedings.

I expressed my concern about this standard:

It is too limited because it only has in mind differences of spoken language, yet the crucial matter is not language but communication. Language and communication are not the same. For example, a person with autism may speak English, but may need someone to assist him in order to understand what counsel is asking/telling. Unless all public defenders are going to get extensive training in interacting with clients who have various communication differences, Number 2 needs to be rewritten to include not just interpreters but others who will make it possible for people with various degrees of comprehension and communication differences who can assist them both with the public defender and in court.

I was very pleased to see that as a result of my interactions with Dave and with Jonathan Sacks, the Executive Director of the Michigan Indigent Defense Commission, this standard has been rewritten with the proposed language:

2. Where counsel is unable to communicate with the client because of language or communication differences, counsel shall take whatever steps are necessary to fully explain the proceedings, including seeking the appointment of an interpreter to assist with pre‐trial preparation, interviews, investigation, and in‐court proceedings, or other accommodations.

Inadequate defense is one reason why people with disabilities find themselves incarcerated more often than the general population. I hope that this change in Michigan’s public defense standard becomes widespread across other states and beyond so that people can receive a fair hearing during their time in court.

I would encourage you to comment on this standard yourself by emailing comments on the standards to [email protected] or mailing them to 200 N. Washington Square, Lansing, MI 48933.