Asked and Answered

State Rep. Tom McMillin on indigent defense bill

Michigan state representative Tom McMillin (R –District 45) introduced a sweeping indigent defense reform bill (HB 5804) in August that aims to bring accountability and structure to right to counsel services. HB 5804 is the result of the work of Gov. Rick Snyder’s Advisory Commission on Indigent Dense, a bipartisan blue ribbon panel of which McMillin was a member. The bill would create a 14-member Michigan Indigent Defense Commission to oversee the appointment and monitor the performance of lawyers who represent low-income defendants.

Thorpe: The existing system leaves it up to individual counties to fulfill the constitutional responsibility for “assistance of counsel” for defendants. What are the flaws of that system?

McMillin: The fundamental flaw in Michigan’s current county-based system of providing indigent defense is not that counties have the responsibility, it is that there are no common, constitutional and statewide standards in place to ensure every system, of the 150 systems statewide, provides defense services effectively.

Justice for a defendant is very different if facing charges in Oakland County versus Kent County versus Antrim County versus Houghton County. That isn’t right and it isn’t constitutional. The quality of an individual’s defense should not be determined by their zip code.

Currently, Michigan has a patch work system of indigent defense approaches varying from county to county and even courtroom to courtroom.

The reform legislation would apply common, statewide principles for an effective defense for each county to apply through their local systems.

Thorpe: How will the new system work from the standpoint of a defendant?

McMillin: When the innocent go to prison and true perpetrators remain free, our communities are less safe and years are lost for those defendants failed by the system. In our current system where public defense attorneys are routinely denied time, resources and access to meet with their clients, mistakes can be made, evidence overlooked and an effective defense is difficult to deliver no matter how skilled the attorney. This leads to wrongful convictions. A strong public defense system is needed in order to convict the guilty, protect the innocent, and keep our communities safe. That is the aim of the proposed legislation.

New standards for an effective defense would include training for attorneys, ample time and sufficient resources to meet with defendants and access investigative tools and caseload standards — the basics — all things that would improve quality of indigent defense in Michigan.

Thorpe:
How will the costs be apportioned under proposal?

McMillin: The reform legislation establishes a state commission on indigent defense. The primary job of this commission is to do a complete review of indigent defense services across Michigan looking through the lens of constitutional standards. After that evaluation is complete, funding recommendations will be shared with local governments and with state lawmakers and additional resources would be appropriated during the annual state budget process.

Thorpe: The reform will have a moral and legal aspect, but it also may save the taxpayers money. Could you explain the possible savings?

McMillin: Costly errors and inappropriate sentences resulting from Michigan’s failing indigent defense system mean that Michigan taxpayers pay millions of dollars in wrongful conviction settlements, and on unnecessary corrections and court costs to fix costly mistakes. On top the cost concerns in the court system, every time a defendant is wrongfully convicted the state spends $35,000 per year housing that individual in our correctional facilities.

An inefficient system is an expensive system. Michigan desperately needs a system of indigent defense with spending transparency that uses our taxpayer dollars more effectively and efficiently.

In addition, one benefit of a state commission and the research it will do is that it will find best practices from counties that are meeting standards and doing so efficiently. Those best practices will be shared with other counties in an effort to bring efficiency throughout the system.

Thorpe: The legislation creates the Michigan Indigent Defense Commission (MIDC). Tell us about that body.

McMillin: The permanent commission on indigent defense would be housed within the judicial branch of state government made up of individuals named by the Governor, legislative leaders and the Supreme Court and representing interests throughout the criminal justice system.

Its job would be to collect needed data to ensure transparent and effective use of tax dollars.

The commission would also have the responsibility to establish and enforce minimum statewide standards to meet Michigan’s constitutional duty to provide effective assistance of counsel to residents unable to afford an attorney and would base those standards on the American Bar Association’s widely accepted “10 Principles for an Effective Public Defense.”
Lastly, the commission would be charged with establishing methods of measuring performance in providing public defense services.

Thorpe: What do you see as the timetable for enactment of the various provisions of the act?

McMillin:
We are hopeful that the State Senate will take up House Bill 5804 when the Legislature returns after Thanksgiving and will give the Governor the opportunity to sign the bill before the end of the year.

With the legislation in place, the Commission would be appointed and staff would begin the task of collecting data from all across Michigan. It will be that data that informs recommendations on spending going forward.

We would expect that the Commission would need 6 months to a year to gather this information and would be in a position after the information is gathered to start making recommendations to the Supreme Court and the Legislature.

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