At sentencing, the Oakland County Prosecuting Attorney is now asking the judge to order the defendant to pay the “costs of prosecution.” This is one way, along with forfeiture in drunk driving cases, that Oakland County’s newest prosecutor hopes to help ease the department’s budget crises. The idea however has many detractors, including the majority of Michigan’s criminal defense attorneys.
Perhaps the biggest issues are that it seems unfair, may be illegal and is perhaps even unconstitutional. The prosecuting attorney is already being paid out of taxpayer funds. They are not paid extra for each case they prosecute and the prosecutor has not shown a direct connection or nexus to any individual case and the need to hire more prosecutors.
This is really almost like a use tax in that an individual is being charged for “using” a government provided service. The reason some believe that it is illegal is because although there is a statute that allows the imposition of “costs” in certain criminal cases, including drunk driving, the statute is silent as to reimbursing prosecutor’s salaries.
In legal parlance “costs” include things such as postage, copying, costs incurred in hiring experts or investigators, and because salary is not specifically indicated in the statute, it may not be legal.
Several of Oakland County Judges believe that the request for costs is unlawful. For example, according to the Detroit Free Press:
“I can say that the prosecution has not met their burden in showing that these fees are appropriate,” said Judge Michael Warren. He drafted a “No, you can’t have any fees for a job you’re already paid for” speech that some of his colleagues are using in turning down the requests.
Prosecutor Cooper defends the practice by saying judges at the district court level have been awarding costs of prosecution in drunk driving cases for years. There is a clear distinction between the two because at the district court level the arresting police department will nearly always send a bill for a cop’s overtime. These bills are usually $150.00 – $200.00.
Cooper is requesting $400.00 to be paid to her office, and decided on this amount because that is what an appointed criminal defense lawyer earns per felony if there is no trial. There are additional payments when the appointed lawyer takes the case to trial.
An open question is whether or not Cooper will likewise seek additional reimbursement if a defendant goes to trial. In this even such a standard would certainly have a “chilling” effect on a defendant’s trial/no trial decision, and defense attorneys would have to tell their innocent clients: “look if you lose, not only will you have to pay my fees, but you’ll have to pay the fees of the prosecuting attorney!”
It will be interesting to see what Michigan’s Supreme Court has to say about this issue, and whether or not they will rule in favor of a defendant’s right to trial. I for one am not optimistic.
For more information on this topic you may also want to read the Daily Tribune article.