Capital News Service

of the Michigan State University School of Journalism

Fight flares on free lawyers in parole hearings

By MATT WALTERS
Capital News Service

LANSING – New House legislation could bar court-appointed free legal representation for parolees.

The bill would prohibit appointment of lawyers at public expense for prisoners when a prosecutor or victim appeals their right to parole.

Its sponsor, Rep. Al Pscholka, R-Stevensville, said the measure would save counties money.

“When prisoners are out on parole, they already have a lawyer.  This would make sure they aren’t appointed additional counsel that has to be paid for by the county,” Pscholka said.

However, opponents of the bill disagree.

According to Pscholka, it’s up to individual judges whether to appoint a lawyer at county expense.

“Some counties don’t allow additional legal counsel to be appointed, but not all of them.  I want to make this a uniform law for the whole state,” Pscholka said.

Elizabeth Lyon, director of governmental relations at the State Bar of Michigan, said she is tracking the bill and has concerns but that the full organization has no formal position.

“I can’t comment on the specifics but I do have concerns that it would be unconstitutional,” Lyon said.

The Prisons and Corrections Council, a section of the State Bar, says inmates who can’t afford a lawyer to represent them in parole appeals should be entitled to counsel appointed by the court.

“Prosecutors are filing parole appeals with increasing frequency.  As a result, prisoners who are granted parole, including those already released, are forced to defend their parole status in formal court proceedings,” the council said in a policy statement.  “Prisoners usually don’t have the means to hire counsel, nor is there any rule or other mechanism for the appointment of counsel in such circumstances.”

The statement said it’s unfair to force prisoners to represent themselves in parole appeals.  “An unrepresented prisoner is no match for a county prosecutor in litigating such issues, and the unfairness is plain,” said the council.

David Moran, clinical professor of law at the University of Michigan, said the legislation is unnecessary and potentially unconstitutional.

“Appeal of parole is a very rare thing.  There has only been one case in the past two years that this bill would apply to,” Moran said.

He said that the bill as written could be unconstitutional because of a 1973 U.S. Supreme Court decision that gave parolees the right to counsel on a case-by-case basis.

“A judge decides whether to appoint legal counsel in cases like this depending on the circumstances.  Flatly denying representation in all cases, as this bill would do, would be unconstitutional,” Moran said.

According to Moran, parolees can have appointed counsel at appeal hearings only if they are unable to represent themselves because they can’t speak English or if the case is too complex for them to understand.

“It is unfair to force people to defend themselves under some circumstances.  This bill would raise a serious constitutional issue and could take away the liberty interests of prisoners,” Moran said.

Pscholka’s bill is in the House Judiciary Committee.

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