Michigan Governor’s Advisory Commission recommends sweeping changes

Pleading the Sixth: On June 22, 2012, a high-profile, bi-partisan commission appointed by Michigan Governor Rick Snyder unanimously adopted a set of findings and recommendations that will change the way the state provides right to counsel services, if legislatively passed in the coming months. A permanent, independent commission with authority to establish and enforce minimum standards is viewed as the “core” measure to sustain reform long-term.

On June 22, 2012, the Governor’s Advisory Commission on Indigent Defense unanimously approved and released its report on the right to counsel in Michigan.  Having defined the state’s indigent defense system as an “uncoordinated, 83-county patchwork quilt,” with each county “dependent on its own interpretation of what is adequate” given limited local funding, the commission determined that “Michigan’s current system of providing representation for indigent criminal defendants lacks procedural safeguards to ensure effective public criminal defense services.” Focusing on testimony that “individual attorneys have suffered repercussions for raising concerns about compliance with national standards, including those related to caseload,” removing the judiciary from oversight and administration of indigent defense became the cornerstone of the commission’s blueprint to reform. The commission determined further that lawyers “should not face discipline or be subject to repercussions for complying with professional and ethical responsibilities,” and instead favored a permanent, independent statewide commission with authority to set and enforce minimum standards.

The American Bar Association (ABA), Ten Principles of a Public Defense Delivery System was a central focus in the commission’s work and recommendations. Calling the Ten Principles a “concise statement of minimum standards required for operation of [an indigent defense] system consistent with the United States Constitution,” the commission asked the Michigan Legislature to “adopt and incorporate the following as the guiding standards” for a permanent commission overseeing public counsel services across the state that mirror many of the Principles, including:

• “The public defense function, including the selection, funding, and payment of defense counsel is independent of the judiciary while assuring that local judges be allowed meaningful input;”
• “Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar;”
• “Defense counsel is provided sufficient time and a confidential space to meet with the client;”
• “Defense counsel’s workload is controlled to permit the rendering of quality representation. Each local system must take affirmative steps to avoid the creation of economic disincentives or incentives that threaten to impair the provision of effective assistance of counsel;”
• “Defense counsel’s ability, training and experience match the nature and complexity of the case;”
• “The same individual attorney continuously represents and personally appears at every court appearance from beginning to end;” and,
• “Defense counsel is systematically reviewed for quality and competence according to standards adopted by the permanent commission.”

If legislatively adopted, these recommendations will produce sweeping changes throughout the state where even large urban jurisdictions, like Wayne County (Detroit) still provide services through private attorneys paid hourly or under contract to a judge, often substitute “stand-in” attorneys unfamiliar with the case for certain hearings, and offer financial incentives for attorneys to dispose of cases as quickly as possible.

The recommendations are even more powerful considering the make-up of the advisory commission itself. Created by Governor Rick Snyder via Executive Order on October 13, 2011, the commission was comprised of a majority and minority representative from each chamber of the legislature in addition to appointees recommended by the judiciary (2 appointees), prosecuting attorneys (1), the State Bar of Michigan (1), local government (1), criminal defense attorneys (1) and four members of the general public (that represented business interests, faith-based organizations, etc.). Recognizing the power of diverse viewpoints at fixing major systemic deficiencies, the advisory commission recommended that the permanent commission also be balanced between the three branches of government and criminal justice stakeholders. Each member of the permanent committee “shall have significant experience in the defense of criminal proceedings or shall have demonstrated a strong commitment to quality representation in indigent defense matters.”

The advisory commission also recognized that the juvenile defense system “has distinctly different structure and purpose than the adult courts” while sharing many of the systemic deficiencies found in trial-level representation. As such, the commission found that an additional assessment of the juvenile defense system, “is needed to ensure that constitutional rights of Michigan’s youngest citizens are upheld,” and recommended that the “Governor appoint a separate study commission focused on that system.”

“I appreciate the commission for developing its recommendations to help overcome the decades-long challenges that have impeded Michigan’s public defense system,” Governor Rick Snyder said in an official press statement released the same day the advisory commission report was made public. “I will review the recommendations and look forward to working with the Legislature to ensure that all criminal defendants, regardless of ability to pay, receive effective legal representation in our state.”

The legislators on the advisory committee have already acknowledged that bill drafts are in the works to match the commission’s recommendations and that they anticipate having a vote before the close of the 2012 calendar year. Bi-partisanship appears the order of the day. As Republican representative Tom McMillin acknowledged in a National Public Radio story appearing on June 14th, “Conservatives are really talking about, what is the proper role of government? Has it expanded too much? … And I think many of us feel this is one of the proper roles — providing as much equal justice as possible.”

The Sixth Amendment Center will keep you posted as things progress.