Indigent defense bill introduced in Michigan legislature

August 15, 2012


David Carroll


Pleading The Sixth


Pleading the Sixth: A sweeping indigent defense reform bill was introduced in the Michigan legislature on August 15, 2012 that promises to bring accountability to and improve the quality of right to counsel services in the state.  Initial signs are positive as 68% of the House of Representatives have already signed on as co-sponsors. The Sixth Amendment Center analyzes the bill for our readers to understand why it has so much bipartisan support.

On August 15, 2012, Michigan state representative Tom McMillin (R – District 45) introduced a sweeping indigent defense reform bill (HB 5804) that promises to bring accountability and structure to right to counsel services in a state known for its deficient “non-system.”   HB 5804 is the result of the work of Governor Rick Snyder’s Advisory Commission on Indigent Dense, a bipartisan blue ribbon panel of which Rep. McMillin was a member. (For more on the Commission and its report and recommendations, please see our earlier story here.)

Due in large part to the diligence and integrity of the Commission’s work, HB 5804 was introduced with a total of 75 out of a potential 110 house co-sponsors (Republicans: 38; Democrats 37) achieving 68% support of that legislative chamber.  In Michigan, bills are assigned to just one committee and HB 5804 was assigned to the House Judiciary Committee this morning.  On July 18, 2012 the chair of the Governor’s Commission, former Circuit Court Judge James Fisher, and other members of the Commission made a presentation on their work and recommendations before the House Judiciary Committee. Perhaps not unrelated, 16 of the 17 members of the House Judiciary Committee are already co-sponsoring the bill.

What HB 5804 says

In 1981, the United States Supreme Court determined that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” Polk County v. Dodson, 454 U.S. 312 (1981). Observing that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the Court concluded in Polk County that a “public defender is not amenable to administrative direction in the same sense as other state employees.”

National standards of justice reflect the aims of the U.S. Supreme Court.  The American Bar Association’s Ten Principles of a Public Defense Delivery System, explicitly states that the “public defense function, including the selection, funding, and payment of the defense counsel, is independent.”  In the commentary to this standard, the American Bar Association notes that the public defense function “should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel,” noting specifically that “[r]emoving oversight from the judiciary ensures judicial independence from undue political pressures and is an important means of furthering the independence of public defense.”

HB 5804 puts independence at the center of the indigent defense reforms with the creation of the Michigan Indigent Defense Commission (MIDC) – a 14-member statewide oversight commission with authority to establish and enforce standards that local government must follow.  MIDC will be an autonomous entity housed in the judiciary branch of government.  Though all MIDC members will be appointed by the Governor to 4-year staggered terms, the Governor must select members as nominated by the following: Speaker of the House (2 appointments); Senate Majority Leader (2 appointments); Chief Justice (1); Criminal Defense Attorneys of Michigan (2); Michigan Judges Association (1); Michigan District Judges Association (1); State Bar of Michigan (1); and, bar associations whose primary mission is to advocate for minority interests (1). The Governor also appoints two other members, one representing the interests of local government and one from the general public.  The Chief Justice will also serve as a non-voting member.

MIDC is charged with developing and overseeing “the implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that criminal trial defense services are consistently delivered to all indigent adults in [Michigan] consistent with the safeguards of the United States Constitution, the state constitution of 1963, and this act.”  Please note that the MIDC will not be overseeing either juvenile representation or appellate representation. Michigan has long had an independent commission overseeing appellate representation. The State Appellate Defender Office (SADO) was created in 1969 under a U.S. Department of Justice, Law Enforcement Assistance Administration (LEAA) grant.  The appellate defense system was codified in 1978, with annual state funding for SADO.  And, recognizing the children in delinquency proceedings require specialized advocacy, the Governor’s Commission found that a more complete assessment of the juvenile defense system is needed before prudent recommendations can be made.

As proposed, MIDC will be charged with hiring an executive director and other staff necessary to develop, implement and enforce standards and establish procedures for mandatory data collection.  Consistent with the ABA Ten Principles, the standards must ensure that the “delivery of indigent criminal trial defense services, including, but not limited to, the selection, funding and payment of defense counsel, shall be independent of the judiciary” (Principle 1).  And, whereas Wayne County (Detroit) is the most populous county in the United States not served primarily by a public defender office, HB 5804 follows ABA Principle 2 in requiring an indigent criminal defender office where the caseload “is sufficiently high” to support a full-time office (though this requirement is waived if all of the other standards are met).

Other highlights include that MIDC minimum rules and requirements must adhere to the following:

  1.  “Defense counsel is provided sufficient time and space where attorney-client confidentiality is safeguarded;” (Principle 4)
  2. “Defense counsel’s workload is controlled to permit high-quality representation. A local unit of government shall not create economic disincentives or incentives that may impair defense counsel’s ability to provide effective representation;” (Principle 5 & Principle 8, in part)
  3. “Defense counsel’s ability, training, and expertise match the nature and complexity of the case;” (Principle 6)
  4. “The same defense counsel continuously represents and personally appears at every court appearance throughout the pendency of the case;” (Principle 7) and,
  5. “Defense counsel is systematically reviewed for quality and efficiency of representation.” (Principle 10)

Because the Governor’s Commission determined that it was best for Michigan to leave the administration of indigent defense systems to local government, HB 5804 requires counties to “maintain not less than the level of funding for indigent criminal trial defense services … as its average annual expenditure in the 3 fiscal years immediately preceding the creation of MIDC under this act, or a rate of $7.25 per capita, which ever is greater.”  Because Michigan averages $7.25 per capita already for indigent defense services, this will force those counties below the per capita median to increase their portion of the funding. “If additional funding is necessary in order to bring a local unit of government’s delivery of indigent criminal trial defense services into compliance with standards established by the MIDC, that additional funding shall be paid by the state.” And, if a county is still unable to meet the MIDC standards even with additional state funding, MIDC is authorized to provide direct client representation itself.

In July 2012, the House Fiscal Agency released a financial impact statement examining the recommendations of the Governor’s Commission.  The analysis suggests that increasing the level of representation in Michigan could cost the state “approximately $40 to $50 million annually.” However, the “reduction in costs for the Court of Appeals, the Department of Corrections, and county jails may partially or fully offset the costs of implementing these reforms, or result in a net savings for the state or local governments.

The Sixth Amendment Center will continue to keep you updated as significant events unfold in Michigan.