Pleading the Sixth: Is 2013 the year that Michigan finally passes substantial right to counsel reform? In a two-part series, the 6AC discusses a new indigent defense reform bill introduced in the state legislature on April 10, 2013. Part One analyzes how the proposed bill meets the vast majority of the ABA Ten Principles, and answers the critical questions of how the Principles will be enforced and funded. Part Two looks at the most controversial part of the new bill – the involvement of prosecutors in the formation of public defense standards.
On April 10, 2013, state Senator Bruce Caswell (R) and Representative Tom McMillin (R) introduced identical public defense reform bills in both chambers of the Michigan legislature. The proposed legislation aims to overcome many of the long-standing systemic indigent defense deficiencies that have plagued the ability of Michigan counties from providing an adequate right to counsel for years. SB 300/HB 4529 maintain many of the aspects of the 2012 bill (HB 5804), while addressing lingering concerns that stalled the bill during the last session, most notably the system’s funding and the enforcement of standards.
How SB 300/HB 4529 meet the ABA Ten Principles
To ensure the independence of the defense function as required under the first of the American Bar Association, Ten Principles of a Public Defense Delivery System, SB 300/HB 4529 creates a 15-member indigent defense commission to develop and oversee the “implementation, enforcement, and modification of minimum standards, rules, and procedures to ensure that indigent criminal defense services providing effective assistance of counsel are consistently delivered to all indigent adults in this state.” If enacted, the Michigan Indigent Defense Commission (MIDC) will have authority to investigate, audit and review the operation of local county right to counsel services to “assure compliance with the commission minimum standards, rules and procedures.”
Many of the mandatory standards to be promulgated are consistent with the ABA Ten Principles. For example, while acknowledging that “judges of this state are permitted and encouraged to contribute information and advice concerning the delivery of indigent criminal trial defense services,” Section 11(1)(a) makes clear that “the delivery of indigent criminal defense services shall be independent of the judiciary” in compliance with ABA Principle 1. In recognition of Principle 2’s call to have coordinated systems that consist of both public defenders and the private bar attorneys, SB 300/HB 4529 suggests that county systems may “consist of both an indigent criminal defender office and the active participation of other members of the state bar,” wherever the caseload in a particular jurisdiction is “sufficiently high.”
Principles 4 and 5 are met by requiring MIDC to set standards such that “[d]efense counsel is provided sufficient time and space where attorney-client confidentiality is safeguarded for meetings with defense counsel’s client,” and where “[d]efense counsel’s workload is controlled to permit effective representation.” The section on workload in SB 300/HB 4529 also meets Principle 8’s prohibition on flat fee contracting, noting that economic “disincentives or incentives that impair defense counsel’s ability to provide effective representation shall be avoided.”
Other requirements include: “[d]efense counsel’s ability, training, and experience match the nature and complexity of the case to which he or she is appointed,” (Principle 6); the “same defense counsel continuously represents and personally appears at every court appearance throughout the pendency of the case,” (Principle 7); “[d]efense counsel is required to attend continuing legal education relevant to counsel’s indigent defense clients,”(Principle 9); and “[d]efense counsel is systematically reviewed for efficiency and for effective representation according to MIDC standards,” (Principle 10).
To ensure that the MIDC’s standards are properly vetted and reviewed, SB 300/HB 4529 requires a public hearing on all proposed standards and the approval of the Michigan Supreme Court. To prevent against this review process’ potential for inordinate delay, the legislation requires the Court to either approve or send the standard back to the MIDC for further consideration within 180 days of receipt of the proposed standard.
The ABC’s of how MIDC is intended to improve right to counsel services
As each new standard is promulgated and approved by the Supreme Court, SB 300/HB 4529 requires each Michigan county to submit a plan for how they intend to meet the new standard. For example, if and when the MIDC requires counties to implement continuous representation by the same attorney appointed to represent a defendant, and if County A traditionally uses horizontal representation (i.e., one attorney handles the arraignment, a different lawyer handles preliminary hearings, a third attorney handle trial, etc.), then County A will need to submit a plan to MIDC stating that they need to hire additional attorneys at an additional cost of say $500,000 to move away from horizontal representation. If MIDC then approves the plan, the additional costs get factored into a statewide plan presented to the governor and legislature during budget negotiations. So, if compliance with state standards requires additional funds, the state will step up. We’ll explain.
The key questions: What about funding and enforcement?
One of the major issues that stalled the 2012 bill was the lack of clarity on whether or not additional monies to meet MIDC standards would come from the county or the state. That is, state and county policymakers agree that the systemic and policy changes required to improve services will inevitably carry some amount of cost. But the financial health of many Michigan counties makes it difficult, at best, for the counties to spend more than they are already spending today. So where will this extra money to meet minimum standards of quality come from?
Under the proposed legislation, the state of Michigan will share the cost of indigent defense representation with its counties and municipalities. However, the lion’s share of the funding to meet MIDC standards will come from the state, not the counties. SB 300/HB 4529 require all local units of government to maintain not less than the level of funding for indigent criminal defense services as its average annual expenditure in the three fiscal years immediately preceding the creation of the MIDC. But, if the “MIDC determines that funding in excess of the local unit of government’s share is necessary in order to bring its system into compliance with the minimum requirements established by the MIDC, that excess funding shall be paid by this state.” In effect, the counties’ portion of indigent defense funding will be locked at this three-year average rate with all future funding coming from the state.
However, if a local unit of government fails to meet MIDC standards, the MIDC is authorized to take over the administration of indigent criminal defense services for the local unit of government. And, as a disincentive for counties to purposefully fail to meet standards to have the state take over the system and relieve them of all funding responsibilities, SB 300/HB 4529 mandates that county government in jurisdictions taken over by MIDC will pay 10% of any state costs the MIDC determines are necessary in order to meet standards in addition to paying the original local government amount equal to the average spent in the prior three years. And, the cost to counties will increase in subsequent years with the county having to pay 20% of the state costs in year two of a state take-over, and 30% in year three.
One of the struggles that Michigan policymakers faced throughout the past two years was estimating how quickly MIDC can get up and running, and how much money should be dedicated to MIDC in its first year. For example, should the bill pass and take effect, it is a simple fact that this new system will not be fully operational that day. Rather, it will take the appointing authorities some amount of time to submit names to the Governor, for the Governor to appoint the MIDC members, for a meeting of the MIDC to be scheduled, for MIDC to determine the qualifications for an executive director, for MIDC to post the position and hire the executive director (and subsequent staffing), for the MIDC Director to recommend and for MIDC to promulgate initial standards and, finally, for MIDC to review county plans for how to meet those standards.
Most advocates expect that, should SB 300/HB 4529 be enacted, the MIDC will start with less controversial standards that should not have too many upfront costs (like removing the judiciary from the oversight and administration of indigent defense), before moving on to those that may have greater costs implications (like workload standards) down the road when the process has become more institutionalized.
To help determine appropriate levels of funding, SB 300/HB 4529 states that “any portion of funds appropriated to the MIDC that is not expended in a state fiscal year shall not lapse to the general fund but shall be carried forward in a work project account” for use in future years. So, if the state were to appropriate $10 million dollars to MIDC in its first year, but MIDC is only able to expend $1 million that year (due to the natural roll out associated with starting a new government agency as described above), MIDC would not have to return $9 million to the general fund. The thinking of the legislative sponsors is that this could be a more cost-effective way to ensure adequate funding of the right to counsel in Michigan. That is, if the state budgets $10 million in year one and another $20 million in year two, MIDC could potentially have $29 million in that second year to start implementing its standards. Time will tell if such a plan could be a model for other states.
For Part Two on the series click here.