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The right to counsel in Michigan
The Michigan Constitution states that, “[i]n every criminal prosecution, the accused shall have the right . . . to have the assistance of counsel for his or her defense . . ..” At least until the mid-20th century, the Michigan courts held that this state constitutional provision does not guarantee a defendant the right to have counsel appointed by the court, but instead that it guarantees a defendant the right to have an attorney represent them if the defendant is able to provide that counsel on their own.
In 1957 and several years in advance of the Gideon decision, Michigan statutes and court rules established that indigent adults charged with any crime that carries the possibility of incarceration as a punishment are entitled to have counsel appointed to represent them. All crimes in Michigan are designated as either a felony or a misdemeanor and are punishable by imprisonment. A felony is enacted by the state legislature. A misdemeanor may be enacted by the state legislature (referred to colloquially as a “state-law misdemeanor”) or by a local government as a violation of its ordinances (referred to colloquially as “ordinance cases”).
Michigan statutes and court rules also provide that indigent children are entitled to have counsel appointed to represent them in juvenile delinquency proceedings.
Though the federal Constitution does not require it, Michigan statutes and court rules provide appointed counsel to indigent defendants in some later stages of a criminal or delinquency case (including adult probation violation proceedings, and certain post-disposition proceedings in delinquency cases) and to indigent parties in certain civil proceedings (including certain stages & types of involuntary commitment/treatment/guardianship cases, parents alleged to have neglected and/or abused their child, children alleged to have been neglected and/or abused by their parent, pregnant minors in parental notification of abortion proceedings without regard to whether the minor is indigent, and a person facing isolation or quarantine due to an alleged public health risk.)
How the right to counsel is administered and structured
Trial-level adult criminal representation. Historically, the State of Michigan delegated to the trial court judges all responsibility for providing attorneys to represent indigent adult defendants facing possible imprisonment for a crime in Michigan’s trial courts. Today, the State of Michigan delegates to its county and municipal governments the responsibility for establishing and administering indigent defense systems to effectively represent indigent adults who are charged with a crime, with limited state oversight through the Michigan Indigent Defense Commission (MIDC).
Local government responsibility. Effective July 1, 2013, Michigan state law defines an indigent criminal defense system as the local governments that fund a trial court. Under this definition, there is a separate indigent defense system for every judicial circuit court and every district court (and sometimes separate divisions of a district court) in the state. As of 2021, there are reported to be approximately 120 separate trial-level indigent defense systems in Michigan. Each indigent defense system is responsible for providing and ensuring constitutionally effective assistance of counsel to indigent defendants in the cases arising out of the trial courts within their jurisdiction.
State responsibility through MIDC. The State of Michigan created the Michigan Indigent Defense Commission (MIDC) effective July 1, 2013. MIDC is an autonomous entity within the executive branch of state government, housed within the state’s Department of Licensing and Regulatory Affairs (LARA). MIDC is empowered by state law with three primary responsibilities:
- to promulgate and oversee implementation of statewide standards, rules and procedures for indigent criminal defense representation in adult criminal cases in the trial courts;
- to make grants of appropriated state funds to indigent defense systems to comply with statewide standards; and
- to investigate, audit, and review the operations of indigent defense systems to assure their compliance with statewide standards, rules, and procedures.
MIDC does not have any authority over or responsibility for the other types of cases and defendants for which Michigan law provides a right to counsel (i.e., juvenile delinquency cases and certain civil cases), and MIDC does not provide direct representation to any person in any court.
As statutorily established, MIDC has 18 voting members and the supreme court chief justice (or their designee) as the one non-voting ex officio member. All of the voting members are appointed by the governor to serve staggered four-year terms (and continuing until their successor is appointed). Although the governor must appoint the commission members from among names submitted by a variety of people and groups, the governor may reject the submitted names and request other submissions. The governor may also remove any member from the commission at any time “for incompetence, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.”
The commission members hire an executive director to head MIDC’s central office, located in Lansing. Subject to state appropriations, the executive director hires and supervises the number of staff that MIDC determines is needed. During 2021, MIDC’s appropriated staffing allowed for 14 total full-time employees, including the executive director. Among the 14 staff, six regional managers each have primary responsibility for the indigent defense systems within a particular region of the state, designated by MIDC as: LMOSC; MID; Northern; South Central; Wayne; and Western.
MIDC develops “minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are consistently delivered to all indigent adults.” A standard approved by MIDC is not final and does not take effect until it is approved by LARA. As of 2021, MIDC has submitted nine standards to LARA for approval, and LARA has approved six of those standards while the other three remain pending.
Michigan law requires MIDC to monitor every indigent defense system within the state to ensure compliance with MIDC’s standards (once they are final and the state has appropriated funding for them and MIDC has distributed that state funding), rules, and procedures. MIDC is prohibited from requiring any indigent defense system to provide services in excess of those mandated through MIDC’s final & funded standards.
MIDC is required to collect and report data about how each indigent defense system operates, and every indigent defense system “shall” comply with MIDC’s efforts. Among other things, MIDC must require each indigent defense system to provide documentation of all expenditures. MIDC collects most of its information about each indigent defense system when it receives from that system an annual compliance plan & cost analysis, the contract for each annual grant, and quarterly compliance plan progress reports (PR) & financial status reports (FSR).
Michigan law authorizes MIDC to take court action to enforce compliance by an indigent defense system with its final & funded standards. If a court finds that an indigent defense system is in breach of its statutory “duty to comply” with MIDC standards, the court may “issue any orders necessary to obtain compliance.” If the system still refuses or fails to comply, the court can order MIDC to take over the delivery of indigent defense services in that jurisdiction and to bill the local government for its costs.
Appellate representation. The Appellate Defender Commission is a seven-member commission of the judicial branch that oversees the State Appellate Defender Office (SADO) and the Michigan Appellate Assigned Counsel System (MAACS). The commission members are appointed by diverse authorities: Supreme Court (2), Court of Appeals (1), Michigan Judges Association (1), State Bar of Michigan (2), and one attorney appointed by the Governor.
How the right to counsel is funded
Trial-level adult criminal representation. Historically, the State of Michigan delegated all responsibility for paying the cost of appointed representation for indigent adults charged with a crime to the local governments that it requires to operate the trial courts. Today, the State of Michigan provides the largest portion of the funding for the trial-level right to counsel of indigent adults charged with a crime (approximately 77% as of 2021), while continuing to delegate a portion of the funding responsibility to county and municipal governments.
“Local share” funding. Effective July 1, 2013, the State of Michigan requires each indigent defense system (i.e., the local governments that operate them) to pay its “local share” of the cost of providing representation to indigent adult defendants in the trial courts who are charged with a crime that carries the possibility of imprisonment, and the indigent defense system “must not be required to provide funds in excess of its local share.” For indigent defense systems where more than one municipality is responsible for funding a district court, the municipalities “may agree among themselves” about how to share the responsibility for the cost of providing counsel to indigent defendants, through what are known as interlocal agreements.
The amount of each indigent defense system’s “local share” was first calculated for the fiscal year of October 1, 2018 through September 30, 2019, using a formula defined by statute. The amount of the “local share” can only increase by inflation adjusted to that first year calculation. Indigent defense systems are, however, free to spend as much as they wish or determine is necessary to provide effective assistance of counsel to indigent people; it is just that the state cannot require them to do so.
State funding through MIDC. All funding by the State of Michigan for the right to counsel of indigent adults in trial-level criminal cases is through a state appropriation to the MIDC, in two parts: one part for the operations of the MIDC, and the other part for the MIDC to distribute to the indigent defense systems through standards compliance grants. MIDC makes grants of state funds to indigent defense systems to assist them in complying with final MIDC standards. MIDC must issue a grant to every indigent defense system every year, even if that is “a zero grant reflecting that it will receive no grant funds.”
Appellate representation. Both the State Appellate Defender Office (SADO) and the Michigan Appellate Assigned Counsel System (MAACS) are entirely state-funded.
The methods used to provide public counsel
Trial-level adult criminal representation. State law does not require indigent defense systems to use any particular method for providing indigent defense services. Each indigent defense system in Michigan determines for itself the method(s) it uses to provide representation to indigent adults charged with crimes in the trial courts. According to MIDC, at the end of 2021, most of the approximately 120 indigent defense systems in the state provide the right to counsel for indigent adults charged with crimes by appointing private attorneys, either on a case-by-case basis or pursuant to a contract; of these, 70 administer private attorney appointments through a managed assigned counsel administrator. MIDC reports there are 32 public defender offices in Michigan at the end of 2021, up from only six in 2016.
Appellate representation. The State Appellate Defender Office (SADO) is a traditional public defender office with full-time attorneys and support staff. By statute, SADO only handles one of every four appellate cases. The Michigan Appellate Assigned Counsel System (MAACS) is a coordinated roster of private attorneys appointed to individual cases who are paid an hourly fee for their services. MAACS handles the remaining 75% of appeals cases.
Michigan Constitution, art. I, § 20 (right to counsel in criminal cases)
Michigan Compiled Laws, § 712A.17c (right to counsel of juveniles), and § 775.16 (right to counsel in criminal cases), and §§ 780.711 et seq. (appellate defender act), and §§ 780.981 et seq. (indigent defense commission act)