Michigan clears first legislative hurdle on way to reforming indigent defense

September 20, 2012


David Carroll


Pleading The Sixth


Pleading the Sixth: On September 19, 2012, the Michigan House Judiciary Committee favorably voted the indigent defense reform bill on to the full House on an overwhelmingly bi-partisan basis.  A week earlier, the bill was almost derailed in the committee by testimony from a representative of the Office of the Attorney General.  Read about the difficulties, the leadership displayed by the members of the Governor’s Advisory Commission, and how changes allayed concerns raised by the Attorney General, prosecutors, and counties.

On September 19, 2012, the Michigan House Judiciary Committee sent the indigent defense reform bill to the House floor on a vote of 14 to 1, with 2 abstentions. (Read prior stories on the work of the Governor’s Advisory Commission on Indigent Defense here and the introduction of the bill here.) With only three more days this month to the legislative session (the 20, 25 and 27th) and one next month (October 17), it now becomes a race against the clock to vote it out of the House and over to the Senate.   The bill will most likely come before the full House on one of the two session days next week.

Despite a large number of co-sponsors, success of HB5804 in the House Judiciary Committee was never guaranteed and likely only survived because of the strong leadership of bill-sponsor, Rep. Tom McMillin, and Judge Tom Boyd – a member of the Governor’s Advisory Commission.  As reported on Michigan Radio, the House Judiciary Committee originally heard testimony on September 13th and expected to vote then when a representative of the Office of the Attorney General appeared and testified that Michigan was not in the midst of a constitutional crisis as evidenced by the lack of successful ineffective assistance of counsel claims.  Committee members were noticeably shaken that such testimony should come up at the eleventh hour, considering that the Governor had appointed a high profile, bi-partisan committee that worked for more than nine months to make findings and recommendations on these issues.  The Chair of House Judiciary Committee adjourned that first hearing  without taking a vote.

Why ineffective assistance of counsel claims are not a good indicator of the health of an indigent defense system

When a defendant is convicted and sentenced in a trial court he has a right to have the decision reviewed by a higher authority.  During the appellate process, the defendant can claim that his trial lawyer performed so poorly as to negatively affected the outcome of the case.  These claims are called “ineffective assistance of counsel claims” (IAC claims), and if found meritorious the case will be sent back to the trial courts to be re-tried.  As the Attorney General representative argued during the initial hearing, Michigan’s appellate courts have successfully granted only a limited number of IAC claims, therefore there must be no problems with the quality of representation provided to defendants of limited means.

However, upwards of 95% of all criminal cases are resolved through plea bargains, not trials. And, only a tiny fraction of those cases are disposed through trial ever move on to the appellate system.  Therefore, it is simply unsound to gauge the health of an entire indigent defense system based on but a small fraction of the few cases that do go to trial and are appealed.

In a letter to Rep. McMillin and Judge Boyd, The Constitution Project’s National Right to Counsel Committee (NRTCC) further underscored this point. With the United State Supreme Court only this year concluding in Missouri v. Frye and Lafler v. Cooper that the Sixth Amendment right to effective assistance of counsel applies to plea bargains as well as trials, NRTCC notes that the bulk of Michigan’s indigent defense cases historically never had the opportunity to be reviewed for ineffective assistance of counsel.

As suggested by the NRTCC, and related by Judge Boyd during the second hearing, better measures of the constitutional adequacy of a public defense system include (but are not limited to):  “the total number of people who go unrepresented in juvenile and misdemeanor court, the number of people who have no attorney at the bond or preliminary hearing stage, whether caseloads are controlled and reasonable, the quality (or even existence) of the appointed attorneys’ motions practice, and whether training is required and provided.”

Perhaps, the most compelling argument against using ineffective assistance of counsel claims as the measure of the adequacy of a right to counsel system comes from a September 2010 report by the Innocence Project that states that one out of every five people exonerated through DNA evidence had filed IAC claims against their lawyers, and yet 81% of those were rejected by appellate courts.  If factually innocent people cannot win IAC claims what chance does that leave everyone else?

During the September 19th hearing, the Office of the Attorney General informed the House Judiciary Committee that their concerns were allayed and that they remained neutral on the bill.

Issues raised by the Prosecuting Attorneys Association of Michigan

Unlike the Office of the Attorney General, the Prosecuting Attorneys Association of Michigan (PAAM) have been advocating for indigent defense reform for several years and were active participants in the Governor’s Advisory Commission.  Still, they too wanted some last minute changes to the bill, specifically: 1) that PAAM should have an appointment to MIDC; and 2) that MIDC standards should pass through some sort of legislative or judicial review process before taking effect.

1.  Whether prosecutors should be represented on the MIDC

The footnotes to Principle 1 of the American Bar Association, Ten Principles of a Public Defense Delivery System requiring the independence of the indigent defense function reference the National Study Commission on Defense Services’ Guidelines for Legal Defense Systems in the United States (1976).  The Guidelines were created in consultation with the United States Department of Justice (DOJ) under a DOJ Law Enforcement Assistance Administration (LEAA) grant.  Guideline 2.10 (The Defender Commission) states that “a special Defender Commission should be established for every defender system, whether public or private,” and that the primary consideration of appointing authorities should be “ensuring the independence of the Defender Director.”

The same Guideline states that defender commissions should “consist of from nine to thirteen members,” made up of a “diversity of factions in order to ensure insulation from partisan politics.”  Specifically, “[n]o single branch of government should have a majority vote on the commission.”  To avoid conflicts of interests the NSC Guidelines require that an indigent defense commission should not include “prosecutors, or law enforcement officials.”

The reason national standards call for the prohibition of prosecutors on indigent defense commissions is simple.  The American justice system is an adversarial system in which opposing parties present their positions to an arbitrary judge or jury.  One adversary cannot be allowed to participate in the planning and oversight of the other.  PAAM argued that “defense standards will have a substantial impact on prosecution practices, workload and resources,” and that a “prosecution representative can note those potential problems and offer solutions that don’t dilute defense services while minimizing unjustified problems and expense.”  But the inverse is also true in that prosecutorial practices have substantial impact on defense practices, workload and resources.  This is especially true since public defense practitioners do not generate their own workload and currently do not have the ability, as do prosecutors, to dismiss or reduce charges.

PAAM eventually conceded this point when Judge Boyd presented them with the above counter-argument.

2.  Standards approval process

In the initial hearing on the 13th, PAAM suggested that as HB5804 was then currently drafted, “there is no oversight, nor ability for other participants in the system to comment to an independent body on any standards proposed by the MIDC.  The judiciary, the bar and the public should have input, and an impartial body should decide, what standards will be applied across the state.”

To be clear there are no national standards suggesting that a statewide indigent defense commission should have unlimited power to create any standard regardless of impact on the rest of the criminal justice system.  Indeed, part of the reason for diverse appointing authorities to statewide indigent defense commissions is to limit the ability of any one representative body to co-opt the power to enact standards that does not have the best interests of the citizenry of the state in mind. During the 2007 Louisiana indigent defense reform process, the district attorneys association in that state raised similar concerns. Louisiana policymakers settled on the following statutory language:

All rules shall be adopted pursuant to the provisions of the Administrative Procedure Act and shall be subject to legislative oversight by the House Committee on the Administration of Criminal Justice and the Senate Committee on the Judiciary … Nothing in the provisions of R.S. 15:141 through 184 shall be construed to limit or supersede the inherent regulatory authority of the Louisiana Supreme Court provided for in Article V, Section 5 of the Constitution of Louisiana regarding the regulation of the practice of law in the state of Louisiana.

Given that the State Appellate Defender Office (SADO) in Michigan already has a rule-making procedure in its statutory framework, it made sense to Rep. McMillin, Judge Boyd and others to rely on that precedent. House Bill 5804 now contains the following language: “A minimum standard proposed under this subsection takes effect upon the supreme court’s approval or 120 days after submission to the supreme court for review, whichever occurs first, unless the supreme court rejects the proposed minimum standard.”

Michigan Association of Counties

The final major opposition to HB 5804 came from the Michigan Association of Counties (MAC) and related primarily to the bill’s funding mechanism.  Currently, counties fund the entirety of trial-level right to counsel services, with no assistance from the state.  The level of funding provided varies significantly by county with some counties funding services well above the statewide average and others well below.  The original version of the bill required counties to increase funding for indigent defense to the statewide average (pinpointed at $7.25 per capita). Any new monies required to meet the MIDC standards over and above that average, would be assumed by the state.  The Governor’s Advisory Committee believed that this was a fair balance: counties that had underfunded indigent defense for years (and thus brought the state into a class action lawsuit) should not be rewarded for their history and should come up to, at the very least, the current state average before state money kicks in.  At the same time, counties would be guaranteed that, from that point forward, their contribution to indigent defense would never grow beyond that level of spending.

MAC argued that counties should not have to automatically increase to a state average if they could prove that they were meeting standards despite the non-average spending levels.  Rep. McMillin agreed, noting in the September 13th hearing that if a county could accomplish such a goal then the rest of the state should replicate that county’s practices.   Therefore the bill now contains the following provision: “If MIDC determines that the local indigent criminal trial defense system is in compliance, the maintenance of funding provisions of this section requiring a minimum expenditure of the minimum statewide average shall not apply and no state funds shall be used to support that local indigent criminal trial defense system.”

Finally, MAC argued that no one knows with complete certainty that the statewide average per capita indigent defense funding level is $7.25.  That is true.  As such, the bill now requires that one of MIDC’s first acts is to determine the statewide per capita spending average in consultation with the “house fiscal agency, the senate fiscal agency, and the state court administrative office.”


There is no off-the-shelf indigent defense model that must be implemented for a state to have adequate representation.  Each jurisdiction must find their own solutions within the framework of the ABA Ten Principles.  The Sixth Amendment Center applauds Michigan’s stakeholders and policymakers for striving to implement the national standards in a way that makes sense to the people of Michigan.   We will continue to keep the nation informed so that everyone can learn from Michigan’s lessons.