Michigan is ripe for another giant leap toward fulfilling its right to counsel obligations
Pleading the Sixth: A 6AC report finds Oakland County, Michigan’s indigent defense system pits assigned counsels’ financial self-interests against the legal interests of their indigent clients while excess caseloads go unchecked under a county system that lacks adequate oversight and supervision. The report concludes that the structural deficiencies identified within Oakland County at root are caused by flaws in Michigan’s statutory scheme for providing the right to counsel at the local level. Although statutory reforms establishing the Michigan Indigent Defense Commission in 2013 were an essential first step toward Michigan fulfilling its constitutional right to counsel obligations, 6AC explains why additional statutory reforms are necessary.
The State of Michigan delegates to its counties, cities, townships, and villages the state’s constitutional responsibility for providing effective indigent defense services to indigent adult defendants in criminal trials and, historically, all local indigent defense services in Michigan were created to service individual courts. With a population of 1.2 million, Oakland County (Pontiac) is Michigan’s second largest county. Within Oakland County, there are 12 separate indigent defense systems, administered and funded by at least 11 different county and municipal governments, providing right to counsel services in 31 courtrooms at 14 separate court locations. This decentralization of services impedes the ability of any of the 12 indigent defense systems within Oakland County to ensure the effective representation of indigent adult criminal defendants in the trial courts.
The Sixth Amendment Center’s latest report, The Right to Counsel in Oakland County, Michigan, explains how, without state standards prohibiting certain local policies and practices, the Oakland County government has structured its indigent defense system in ways that violate defendants’ rights to effective assistance of counsel. The report, funded through the Michigan Indigent Defense Commission (MIDC) at the request of Oakland County, recommends that the county coordinate with all other local governments within the county to establish a unified indigent defense system funded and administered by Oakland County, with direct services provided by a hybrid system that has both a public defender and assigned counsel component with expanded centralized supervision. But, absent statutory reform, Oakland County cannot unilaterally create such a unified, county-wide indigent defense system without obtaining the buy-in of the remaining local governments. The report shows the policy choice to maintain local control of indigent defense services under the state’s general supervision, made by state lawmakers enacting the 2013 reform legislation, warrants reconsideration.
How Michigan provides indigent defense services, and what the 2013 legislative reforms achieved
County and municipal governments are responsible for establishing indigent defense systems to effectively represent indigent adult defendants who face possible incarceration for crimes in the trial courts. And all trial level indigent defense services in Michigan were historically formed to serve the local courts first and foremost. In fact, there is a separate indigent defense system for every circuit court and every district court in the state, and the local government statutorily responsible for funding each local trial court is responsible for funding and administering the indigent defense system that serves that trial court. Prior to legislative reforms in 2013, an advisory commission formed by then-Governor Rick Snyder described the right to counsel in Michigan as “an uncoordinated, 83-county patchwork quilt of service delivery systems, with each county’s ‘system’ dependent on its own interpretation of what is adequate and on its own funding availability.”
Only, the governor’s advisory commission understated the degree of the problem. Rather than 83 independent county-level systems, there are in fact approximately 120 different local systems funded and administered by counties, cities, townships, and villages. In Oakland County alone, there are 12 different indigent defense systems, of which the county government is responsible for only two, and different municipalities are responsible for each of the remaining ten. On top of that, each indigent defense system in Michigan determines for itself the method used to provide representation, and for decades most local systems relied almost exclusively on private attorneys appointed on a case-by-case basis by the local trial court and paid whatever the local presiding trial court judge deemed appropriate.
The MIDC Act of 2013 accomplished two significant reforms. First, the state created the Michigan Indigent Defense Commission and empowered MIDC to promulgate and oversee the implementation of statewide standards, rules, and procedures to meet Sixth Amendment right to counsel requirements in adult criminal trials. Second, for the first time ever, the state has accepted some responsibility for funding the right to counsel in adult criminal trials, with MIDC responsible for distributing state funds to local governments to comply with the commission’s standards.
In addition to providing MIDC with broad standards-setting authority, the reform legislation required MIDC to promulgate specific standards effectuating many of the ABA Ten Principles. To date, there are six approved MIDC standards. The first four standards, approved in 2017, relate to the provision of counsel at a defendant’s first appearance in court, initial interviews with new clients, resources for investigation and experts, and education and training for defense counsel. A fifth MIDC standard requiring the independence from the judiciary was approved in 2020, with all local governments required to comply by the end of fiscal year 2022. The sixth standard, effective by the end of fiscal year 2023, sets indigency guidelines and prohibits courts from requiring defendants to repay the local government for the cost of their representation unless they are deemed partially indigent and able to contribute.
By almost any measure, the MIDC Act of 2013 was a giant leap forward for Michigan. The 2013 reforms have transformed the provision of right to counsel services across the state. In fiscal year 2022 alone, the state provided over $176 million in funding for trial-level services; prior to the implementation of MIDC standards, the state provided $0. With state financial support, MIDC standards have already led 32 of 83 counties to create public defender offices, whereas pre-reform there were only three public defender offices in the state. And, critically, judges no longer have any say over the selection, appointment, and payment of attorneys provided to represent indigent defendants. But Michigan is ripe for another giant leap toward fulfilling its constitutional right to counsel obligations.
Why further statutory reforms are necessary
The Sixth Amendment Center’s evaluation of Oakland County found the county’s assigned counsel compensation method pits appointed lawyers’ financial interests against the legal interests of their clients. Because lawyers are paid a flat fee per case in misdemeanors or a flat fee per event in felonies, the more hours the attorney puts into each case, the less their take home pay. These economic disincentives impair defense counsel’s ability to provide effective representation.
6AC also found that Oakland County has taken no steps to limit the number of cases that an attorney representing indigent clients may handle in a year. Several private attorneys have caseloads appointed by Oakland County alone that are in excess of the national caseload limits. But Oakland County has no way of knowing the full caseloads of any attorney it appoints to represent indigent clients because each attorney can also handle cases outside of Oakland County’s purview – for example, some private attorneys accept indigent defense assignments in other jurisdictions within Oakland County or in neighboring counties, as well as handling retained cases.
And all indigent defense systems within Oakland County use horizontal representation, in which counsel at first appearance is provided in name only. This constitutes a systemwide constructive denial of the right to effective assistance of counsel. 6AC found there is the widespread belief among indigent defense attorneys in Oakland County that, because they are not individually appointed as trial counsel when staffing arraignment hearings, no confidential attorney-client relationship exists. In other words, although Oakland County may comply with the letter of the MIDC standard requiring that each defendant is provided with counsel to represent them at their initial court appearance, the attorney provided is little more than a warm body with a bar card.
The Michigan legislature has expressly directed MIDC to promulgate standards on each of these issues, in line with the current parameters of the Sixth Amendment. However, MIDC standards are not binding on local governments until approved by the state Department of Licensing and Regulatory Affairs (LARA), and state law does not set any timeline within which LARA must act on MIDC’s submission. Of the nine standards submitted by MIDC, six have been approved; LARA has yet to act on MIDC’s proposed standards on attorney qualification and supervision, workload limits, and attorney compensation. And MIDC has not yet drafted the required standard on continuous or “vertical” representation.
The absence of a statewide standard does not relieve local governments from their responsibility to provide constitutionally effective counsel. This includes the constitutional obligation to provide representation free from financial conflicts of interest; limit the number of cases that an attorney representing indigent clients may handle in a year; ensure appointed attorneys have adequate support staff, such as secretaries, paralegals, and social workers; ensure the same attorney initially appointed to a case continuously represents the client until the completion of the case; ensure proper oversight of indigent defense services by hiring sufficient numbers of qualified supervising attorneys; and ensure that the attorney appointed to each case is minimally qualified to handle the case effectively. But because MIDC’s oversight is limited to its approved standards, the state lacks any mechanism to monitor and enforce any Sixth Amendment right to counsel requirements that fall outside of MIDC’s existing standards.
Additionally, the state of Michigan is prohibited from requiring local governments to increase local funding to implement the constitutional right to counsel outside of existing MIDC standards. Under the statutory reforms enacted in 2013, each local indigent defense system must maintain its pre-2013 level of indigent defense funding, and if additional dollars are needed to meet MIDC’s approved standards, then the state must provide the balance of funding through annual MIDC grants to the local governments. Over time, as more MIDC standards have been adopted, and more state funding is made available to meet those standards, the local share is an increasingly smaller percentage of the local system’s overall indigent defense funding in each jurisdiction.
Within Oakland County, MIDC now provides more than 95% of total annual funding for six of the eleven district court indigent defense systems. For example, one district court system’s local share is less than $2,000 per year, and less than 0.5% of total annual spending. Each year the State of Michigan comes closer and closer to providing 100% of all indigent defense funding, and yet the state gains no additional decision-making authority over each local system. Stated differently, local actors have all of the power to make decisions affecting the constitutional right to counsel for defendants in misdemeanor trials and felony initial proceedings, while bearing almost none of the fiscal obligation.
At the time of the 2013 reform legislation, the state’s policy choice to maintain local control of indigent defense services under the state’s general supervision was a legitimate choice until such time as the state began putting money into indigent defense services. Moreover, the decision to continue municipal responsibility for providing the right to counsel in the district courts under judicial supervision was in keeping with the general philosophy of the 2013 reforms – that the state’s authority to enforce reforms at the local level is limited to those standards that are promulgated by MIDC and approved by LARA. Indigent defense historically was a function of the local trial courts, and MIDC’s standard requiring independence from the judiciary was not approved until October 2020, and not fully effective on local governments until May 2022. But with judges now removed from responsibilities for the indigent defense systems, and with the state funding the majority of indigent defense costs in the trial courts, that decision warrants revisiting.
The people who work and reside in Oakland County would be best served by a single indigent defense system that can provide uniform administration and oversight of attorneys representing indigent defendants in adult criminal cases throughout all trial courts within the county. After all, the level of justice one receives should not depend on which side of a municipal line a crime is alleged to have been committed. And the philosophy of local control can be maintained by moving the administration and local share funding of indigent defense services to the county level of government.
But the problem of local control in the decentralized systems that exist in Oakland County directly and negatively affects indigent defendants’ rights to a fair trial. Initial court proceedings in felonies are held in the district courts before being bound over for trial in the circuit court. In felony cases, many defendants are represented at their arraignment in district court by an attorney appointed by some other indigent defense system within the county and then by a different attorney who is assigned by the Oakland County government for preliminary stages in district court and the trial stage in circuit court. The arraigning attorney has no way of knowing which attorney will be appointed to represent the defendant from that point forward. Nor is the attorney who is ultimately appointed informed of the identity of the arraigning attorney. The practice throughout Oakland County of providing non-continuous or “horizontal” representation raises serious ethical concerns and is prohibited under national standards. Michigan law calls for MIDC to abolish the practice altogether. Yet the philosophy of local control means that oftentimes in Oakland County no single indigent defense system has responsibility for the effective representation of a defendant all the way from initial appearance in district court through trial and disposition in circuit court, and effectuating the statutory requirement of vertical/continuous representation is therefore practically impossible. The problem is one of both indigent defense structure and felony criminal procedure.
Further still, the state’s failure to set standards effectuating all aspects of the constitutional right to counsel legitimizes the choice of local governments not to fulfill the right to effective assistance of counsel for each defendant in each case. Michigan has delegated its constitutional right to counsel responsibilities to local governments and provides local governments with state fiscal assistance to meet only certain aspects of the state’s original right to counsel obligation – those aspects where MIDC standards have been drafted, approved, and funded. In all other respects, the counties, cities, villages, and townships are responsible for fulfilling the state’s constitutional obligations, without any financial assistance. And, without any MIDC standard on point, the state has no ability to monitor whether each locality provides constitutionally adequate right to counsel services, and the state lacks authority to step in where local governments fail to do so. Local governments are free to spend as much as they wish or determine is necessary to provide effective assistance of counsel to indigent people, but the state cannot require them to spend more. And the state cannot step in to correct the types of constitutional deficiencies identified in the 6AC evaluation of Oakland County.
Conclusion
The Michigan model of state oversight of locally controlled right to counsel systems, and providing state funding to meet standards, only works if the state sets standards in line with all aspects of the constitutional right to counsel as defined by U.S. Supreme Court case law. It also only works if a single indigent defense system is responsible for all aspects of the representation of a single defendant in a single case.
Therefore, the Michigan legislature should revise and amend the MIDC Act to eliminate district court-level indigent defense systems and consolidate responsibility for providing indigent defense services under the auspices of the county government in each county. The legislature also should reform criminal procedure to make all felony prosecutions commence in the circuit courts and abolish horizontal representation within and/or across different indigent defense systems. The MIDC Act of 2013 has led to significant progress in Michigan. The state should take the next step toward ensuring constitutionally effective representation for every indigent defendant in each case.
