The work of the Michigan Indigent Defense Commission continues

By Cynthia Price
Legal News

As the hard-working Michigan Indigent Defense Commission (MIDC) promulgates its second set of standards, the legislature has stepped up to fund both the commission itself and the expenses incurred by the courts to create and run standards-compliant indigent defense programs.

In the 2019 budget recently signed into law by Gov. Rick Snyder, there is just over $84 million to cover the state’s share of the costs incurred by the local funding units, and $2.4 million for the MIDC operating budget.

The funding units were required to submit plans to the MIDC telling how they were going to come into compliance with the first four standards approved by the Michigan Supreme Court (MSC). (MIDC, which originally fell under the auspices of the MSC, is now housed in the executive branch Department of Licensing and Regulatory Affairs, based on concerns expressed by the MSC.)

Once approved, the MIDC reviewed the proposed costs, looking them over with utmost care. “I can tell you as a commissioner watching the process, they really take the tax dollars seriously,” comments MIDC member Dr. David Schuringa, of North Star Ministry Consultants in the Grand Rapids area. After as many as three back-and-forth attempts, the expenses of all 135 funding units were approved.
Parallel with the appropriations process, both legislative houses have passed a bill that makes changes to the MIDC authoring act. HB 5985 has been awaiting the governor’s signature since June 20, but there is no reason to think that he will not sign it.

The final version of HB 5985 makes it clear that the MIDC is an autonomous entity, operating within LARA. This means that the broadly-ranging membership, in strict categories that are codified in the law, have a great deal of responsibility to helping the indigent.

“It’s hard for me to imagine more significant legislation for actually helping the poor,” says Schuringa, who was also involved with the nonprofit Michigan Campaign for Justice, which advocated for the rights of people in poverty. “We are absolutely delighted that there was bipartisan support for improving the public defense system, and I’m excited to think that we could move from 47th in the country to being a nationwide model.”

The revisions set forth in HB 5985 increase the MIDC’s authority, particularly in the sense that it now includes some financial teeth in the enforcement of a local system failing or refusing to comply. The MIDC would also have responsibility for training standards and may limit funding only to approved training programs; it may act as a clearinghouse for experts and investigators, if requested; and  it may recover funds not expended for the local plan, or reimburse funds in excess of the plan (the following year) if the expenditures are reasonable and for direct indigent criminal defense system costs.

The bill also charges the MIDC with creating standards for courts declaring a defendant as indigent or partially indigent. It also clarifies that payments from those determined to be partially indigent do not change the funding unit’s local share of the system, and that the collected funds must be used for the indigent defense system, with 20% going back to LARA.

There have already been a number of changes at the MIDC in 2018. Jonathan Sacks, who had served as executive director since its creation in 2013, stepped down to become director of the State Appellate Defender Office. Loren Khogali was hired to take his place in February.

Khogali was formerly an attorney with the Federal Public Defender Office in Detroit. There, she represented indigent clients at the trial, appellate and post-conviction stages, and helped develop the court’s re-entry and alternative-to-prison programs. Khogali was also the chair of the American Civil Liberties Union of Michigan, serving on its board of directors since 2005.

The current MIDC chair, Michael Puerner, took over earlier this year from former Barry County Judge James Fisher, who is currently Of Counsel in Dickinson Wright’s Grand Rapids office. Fisher chaired the task force which recommended creation of the MIDC, and took a leadership role across the board in its development.

Working closely with Khogali and other staff members, Puerner and the commission (on which Fisher still serves) have been busy. They have proposed four new standards, currently under consideration for recommendation for LARA approval.

There was a public hearing held June 12, which was also the end of the public comment period. Though there were not many commenting at that hearing, speakers included former Executive Director. Sacks, and both the Prosecuting Attorneys Association of Michigan Executive Director Larry Burdick and the Muskegon County Public Defender Fred Johnson were available for questions about their written comments.

The draft standards are complex and should be read in their entirety on the commission website (michiganidc.gov), but they include:

• Standard #5, Independence from the Judiciary, states: “...it is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages...The indigent criminal defense system... should be designed to guarantee the integrity of the relationship between lawyer and client. The system and the lawyers serving under it should be free from political and undue budgetary influence.”

• Standard #6, Indigent Defense Workloads, does not state a specific caseload because a “Michigan specific weighted caseload study” is underway. Until the results are published, the recommendation is to follow the American Council of Chief Defenders’ recommendation – 150 felonies or 400 non-traffic misdemeanors per attorney per year.

• Standard #7, Qualification and Review, sets out some minimum standards and has a years-in-practice component as the severity of the crime increases. As far as review, it adds, “The quality of the representation provided by indigent defense providers must be monitored and regularly assessed.”

• Standard #8, Economic Incentives and Disincentives, does not for the most part set pay scales, but adds, “Attorney hourly rates shall be at least $100 per hour for misdemeanors, $110 per hour for non-life offense felonies, and $120 per hour for life offense felonies.” It also mandates other conditions such as prompt payment.

Approximately 30 comments are recorded on the commission website (michiganidc.gov).

 The commission, working initially in separate committees that consider one specific standard, will weigh comments and potentially suggest revisions.

 

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