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Sentencing errors cost the state millions

By Carol Lundberg

Last week, on the same day Gov. Jennifer M. Granholm was announcing state employee layoffs and unpaid furloughs, Dawn Van Hoek remained hopeful that the state will commit from its 2010 budget more money to one of its least politically popular populations: the convicted.

"I'm the biggest optimist you ever met," said Van Hoek, chief deputy director of the State Appellate Defender Office (SADO).

She has been trying to convince legislators that errors in sentencing are not only wrong on a constitutional level. They also are costly, because sentences that are too long needlessly cost the state millions of dollars every year.

The errors are common, she said, citing a report by The Justice Center, which said that Michigan prisoners serve on average 127 percent of their minimum terms.

If the cost to keep a prisoner incarcerated is about $30,000 a year, Van Hoek estimated that the state could have saved nearly $70 million between the years 2003 and 2007. (See chart, below.)

So the $400,000 she's asking the state to add to SADO's $5 million annual budget should be considered a bargain. The extra money, Van Hoek said, would restore SADO's funding to a level allowing it to take 25 percent of the state's appellate cases, which is a statutory mandate.

The three-attorney plea unit at SADO is only taking 10 percent, as the Supreme Court decision in Halbert v. Michigan 543 US 1042 (2005) created a surge in the number of plea appeals, from 3,420 in 2004, to 4,404 in 2006.

In Halbert, the Court ruled that Michigan's 1994 statute, which made discretionary the right to appeal a guilty plea conviction, was unconstitutional.

Additional funding could bring the unit up to six attorneys, which is what Van Hoek said is needed to manage plea and sentencing appeals.

The unit's lawyers -- Jeanice Dagher-Margosian, Anne M. Yantus and Rolf E. Berg -- take 75-80 cases a year. And they're successful in approximately 85 percent of them.

In most, about 80 percent, of these cases, the client is looking for some sentencing relief. Only about 20 percent of the caseload is on plea appeals.

Dagher-Margosian said her clients are reluctant to appeal a plea because if they do, the entire plea is wiped out, and additional charges that had been bargained away could be added, as could a supplement for habitual offenders.

But lately she's been seeing more cases where there's not much risk because the original result was so bad that her client has nothing to lose.

In one of her recent cases, her client had been drunk when he pushed a woman away from her car and drove off in it. His lawyer told him to plead guilty to carjacking and unarmed robbery.

"But the judge did not take the plea on the unarmed robbery, so the whole plea was off," she said.

The man was sentenced to eight years.

What often happens is that the defendant's lawyer, when advising a client on a plea, may say, "If you take this plea, you should get about two years," or, "Usually people would get three years."

But Dagher-Margosian says what the client hears is, "You will get two years."

So when her client was facing an eight-year sentence, even though there had been no weapons involved and no violence, he wanted to withdraw his plea.

"There was no risk for him," she said.

His plea was successfully withdrawn and the man's family retained a lawyer; his case is being litigated.

But most of the work involves correcting errors in sentencing.

The problem that leads to errors is partly just the dynamic of the sentencing process. In most cases, defense lawyers don't have pre-sentencing reports from the court until literally minutes before a client's sentencing hearing, Van Hoek said.

Part of the problem is the way trial courts are funded, or under funded, which puts financial pressure on defense attorneys to take on so many cases that they can't spot and correct sentencing errors.

"The mistakes are coming from untrained, unpaid, unsupported local trial counsel. They don't calculate the guidelines properly, don't know how, don't get the report soon enough," Dagher-Margosian said. "Systemically, there is not a way to challenge those things right now because of the structure of indigent defense."

It's not that the defense attorneys are making more mistakes than the probation departments that prepare pre-sentencing reports, Yantus said.

"It's just that the defense attorney should be catching those errors and correcting them," she said.

Most convicted people don't realize there's been an error. And if they do, they may not realize it in time to efficiently fix the problem.

The plea unit has a six-month window following sentencing, during which they can go back to the trial court to appeal an erroneous sentence.

It usually takes two months -- or longer -- before the plea unit will even see the file. Before the unit's lawyers get the case, the defendant has to ask for counsel, and a judge has to assign it in the first 42 days after sentencing. Then the case may be assigned to SADO, which then assigns it to the unit.

"At that point, we have to move pretty quickly to get back to the trial court in six months," Dagher-Margosian said.

After that six-month deadline has passed, the Court of Appeals will review sentencing errors for 12 months after sentencing, but the process is more complicated, and it's less likely that the plea unit will prevail.

"I have 75 or 80 cases a year, and out of those, I'll only succeed in one or two sentencing appeals at the Court of Appeals," Yantus said.

Though it's the economy of avoiding errors that Van Hoek points to when she's trying to convince lawmakers to increase SADO's funding, the wasted dollars and cents are not what drives the unit's efforts.

"There are constitutional reasons people shouldn't be serving time outside legal parameters. There's simply a compassionate component. ... It gets to your gut when people are serving time they shouldn't be serving, if they should be serving time at all," Dagher-Margosian said.

"If you're lucky, it keeps you going; if you're not lucky, it burns you out."

If you would like to comment on this story, please contact Carol Lundberg at (248) 865-3105 or carol.lundberg@mi.lawyersweekly.com.

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