Indigent Defense BY: PETER CUNNINGHAM · DIRECTOR OF GOVERNMENTAL RELATIONS, STATE BAR OF MICHIGAN
n July 1, 2013, Governor Snyder signed into law the Michigan Indigent Defense Commission Act. This historic legislation represents the most sweeping reform to indigent criminal defense in Michigan in decades.
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• The same defense counsel continuously represents and personally appears at every court appearance throughout a case except for ministerial tasks and hearings.
The bill creates the Michigan Indigent Defense Commission (MIDC), charged with proposing minimum standards for the local delivery of indigent defense services to adults. Once the Michigan Supreme Court approves those standards, the MIDC will work with local systems to ensure compliance with those standards, and to identify and encourage best practices in indigent defense services.
• Defense counsel is required to attend relevant continuing legal education.
The MIDC will consist of 15 members appointed by the governor with nominations coming from the following: Speaker of the House of Representative (2); Senate Majority Leader (2); Chief Justice of the Supreme Court (1); Criminal Defense Attorneys of Michigan (3); Michigan Judges Association (1); Michigan District Judges Association (1); State Bar of Michigan (1); minority bar associations (1); and Prosecuting Attorneys Association of Michigan (1). In addition, the Governor will appoint one member to represent the general public and one member to represent local units of government. None of the individuals appointed may be compensated for either defending or prosecuting indigent criminal defendants while they serve on the commission. Development of Minimum Standards and Local Implementation
The act requires the MIDC to establish minimum standards that effectuate the following principles: • The delivery of indigent defense services should be independent of the judiciary, but the system should allow for judicial input. • Defense counsel is provided sufficient time and a space where attorney-client confidentiality is safeguarded for meetings with defense counsel’s client.
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• Defense counsel is systematically reviewed at the local level for efficiency and for effective representation. The MIDC is required to hold public hearings before proposing any standards, and the standards must be approved by the Michigan Supreme Court before going into effect. Once a standard has been approved, local systems will have to submit plans, including a budget, to the MIDC for approval. The act outlines procedures for dispute resolution between the MIDC and a local system if a plan is not approved after three submissions. Funding and Enforcement One of the biggest changes under the new act is that the costs of indigent defense services will be a shared responsibility between the state and local units of government. The “local share” of the cost is calculated as the average amount a local system has spent on providing indigent defense services over the three years prior to the creation of the MIDC. Any costs above this local share that are required to meet the new minimum standards will be funded by the state through grants provided by the MIDC. If the state does not provide the additional funds that were approved by the MIDC in the annual plan, then the local system is not required to meet those standards.
The act also provides for enforcement if a local system does not meet the MIDC standards, culminating in the court ordering the MIDC to provide indigent defense services instead of the local system along with a financial penalty for the local system. Current Status
• Defense counsel’s workload is controlled to permit effective representation.
While the Governor has not yet appointed the members of the MIDC, Governor Snyder’s FY 2015 budget proposal does include a $1 million appropriation for the Commission, so appointments are expected soon.
• Defense counsel’s ability, training, and experience match the nature and complexity of the case to which the person is appointed.
The actual legislation and legislative analysis of the Public Act can be viewed here: http://legislature.mi.gov/doc. aspx?2013-HB-4529.
The Grand Rapids Lawyer
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Mar/Apr 2014
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