Bill Text: MI SB0724 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Criminal procedure; indigent defense; appointment and compensation of defense attorneys for indigent defendants during certain stages of criminal cases; require. Amends sec. 11 of 2013 PA 93 (MCL 780.991).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-01-16 - Referred To Committee On Judiciary And Public Safety [SB0724 Detail]
Download: Michigan-2019-SB0724-Introduced.html
SENATE BILL NO. 724
January 16, 2020, Introduced by Senator LUCIDO
and referred to the Committee on Judiciary and Public Safety.
A bill to amend 2013 PA 93, entitled
"Michigan indigent defense commission act,"
by amending section 11 (MCL 780.991), as amended by 2018 PA 214.
the people of the state of michigan enact:
Sec. 11. (1) The MIDC shall establish minimum
standards, rules, and procedures to effectuate the following:
(a) The delivery of
indigent criminal defense services must be independent of the judiciary but
ensure that the judges of this state are permitted and encouraged to contribute
information and advice concerning that delivery of indigent criminal defense
services.
(b) If the caseload is
sufficiently high, indigent criminal defense services may consist of both an
indigent criminal defender office and the active participation of other members
of the state bar.
(c) Trial courts shall
assure that each criminal defendant is advised of his or her right to counsel.
All adults, except those appearing with retained counsel or those who have made
an informed waiver of counsel, must be screened for eligibility under this act,
and counsel must be assigned as soon as an indigent adult is determined to be
eligible for indigent criminal defense services.
(2) The MIDC shall
implement minimum standards, rules, and procedures to guarantee the right of
indigent defendants to the assistance of counsel as provided under amendment VI
of the Constitution of the United States and section 20 of article I of the
state constitution of 1963. In establishing minimum standards, rules, and
procedures, the MIDC shall adhere to the following principles:
(a) Defense counsel is
provided sufficient time and a space where attorney-client confidentiality is
safeguarded for meetings with defense counsel's client.
(b) Defense counsel's
workload is controlled to permit effective representation. Economic
disincentives or incentives that impair defense counsel's ability to provide
effective representation must be avoided. The MIDC may develop workload
controls to enhance defense counsel's ability to provide effective
representation.
(c) Defense counsel's
ability, training, and experience match the nature and complexity of the case
to which he or she is appointed.
(d) The same defense
counsel continuously represents and personally appears at every court
appearance throughout the pendency of the case. However, indigent criminal
defense systems may exempt ministerial, nonsubstantive tasks, and hearings from
this prescription.
(e) Indigent criminal
defense systems employ only defense counsel who have attended continuing legal
education relevant to counsels' indigent defense clients.
(f) Indigent criminal defense
systems systematically review defense counsel at the local level for efficiency
and for effective representation according to MIDC standards.
(g)
Defense counsel must personally appear at every court event throughout the
pendency of the case, including, but not limited to, arraignment, probable
cause conference, preliminary examination, trial, and any other critical event.
(h)
Defense counsel must be appointed to an indigent defendant for an appeal after
a guilty plea has been entered or the defendant has been convicted after a
trial, or for an interlocutory appeal while a case is pending, including, but
not limited to, an appeal of the court's decision regarding pretrial release on
bond.
(i)
Defense counsel must be compensated during the pendency of an appeal of the
court's decision regarding pretrial release on bond.
(3) The following
requirements apply to the application for, and appointment of, indigent
criminal defense services under this act:
(a) A preliminary inquiry
regarding, and the determination of, the indigency of any defendant, including
a determination regarding whether a defendant is partially indigent, for
purposes of this act must be made as determined by the indigent criminal defense
system not later than at the defendant's first appearance in court. The
determination may be reviewed by the indigent criminal defense system at any
other stage of the proceedings. In determining whether a defendant is entitled
to the appointment of counsel, the indigent criminal defense system shall
consider whether the defendant is indigent and the extent of his or her ability
to pay. Factors to be considered include, but are not limited to, income or
funds from employment or any other source, including personal public
assistance, to which the defendant is entitled, property owned by the defendant
or in which he or she has an economic interest, outstanding obligations, the
number and ages of the defendant's dependents, employment and job training history,
and his or her level of education. A trial court may play a role in this
determination as part of any indigent criminal defense system's compliance plan
under the direction and supervision of the supreme court, consistent with
section 4 of article VI of the state constitution of 1963. If an indigent
criminal defense system determines that a defendant is partially indigent, the
indigent criminal defense system shall determine the amount of money the
defendant must contribute to his or her defense. An indigent criminal defense
system's determination regarding the amount of money a partially indigent
defendant must contribute to his or her defense is subject to judicial review.
Nothing in this act prevents a court from making a determination of indigency for
any purpose consistent with article VI of the state constitution of 1963.
(b) A defendant is
considered to be indigent if he or she is unable, without substantial financial
hardship to himself or herself or to his or her dependents, to obtain
competent, qualified legal representation on his or her own. Substantial
financial hardship is rebuttably presumed if the defendant receives personal
public assistance, including under the food assistance program, temporary
assistance for needy families, Medicaid, or disability insurance, resides in
public housing, or earns an income less than 140% of the federal poverty
guideline. A defendant is also rebuttably presumed to have a substantial
financial hardship if he or she is currently serving a sentence in a correctional
institution or is receiving residential treatment in a mental health or
substance abuse facility.
(c) A defendant not
falling below the presumptive thresholds described in subdivision (b) must be
subjected to a more rigorous screening process to determine if his or her
particular circumstances, including the seriousness of the charges being faced,
his or her monthly expenses, and local private counsel rates would result in a
substantial hardship if he or she were required to retain private counsel.
(d) A determination that
a defendant is partially indigent may only be made if the indigent criminal
defense system determines that a defendant is not fully indigent. An indigent
criminal defense system that determines a defendant is not fully indigent but may
be partially indigent must utilize the screening process under subdivision (c).
The provisions of subdivision (e) apply to a partially indigent defendant.
(e) The MIDC shall
promulgate objective standards for indigent criminal defense systems to determine
whether a defendant is indigent or partially indigent. These standards must
include availability of prompt judicial review, under the direction and
supervision of the supreme court, if the indigent criminal defense system is
making the determination regarding a defendant's indigency or partial
indigency.
(f) The MIDC shall
promulgate objective standards for indigent criminal defense systems to
determine the amount a partially indigent defendant must contribute to his or
her defense. The standards must include availability of prompt judicial review,
under the direction and supervision of the supreme court, if the indigent
criminal defense system is making the determination regarding how much a
partially indigent defendant must contribute to his or her defense.
(g) A defendant is
responsible for applying for indigent defense counsel and for establishing his
or her indigency and eligibility for appointed counsel under this act. Any oral
or written statements made by the defendant in or for use in the criminal
proceeding and material to the issue of his or her indigency must be made under
oath or an equivalent affirmation.
(4) The MIDC shall
establish standards for trainers and organizations conducting training that
receive MIDC funds for training and education. The standards established under
this subsection must require that the MIDC analyze the quality of the training,
and must require that the effectiveness of the training be capable of being
measured and validated.
(5) An indigent criminal defense system may include in its compliance plan a request that the MIDC serve as a clearinghouse for experts and investigators. If an indigent criminal defense system makes a request under this subsection, the MIDC may develop and operate a system for determining the need and availability for an expert or investigator in individual cases.
