December 9, 2009, Introduced by Reps. Constan and Amash and referred to the Committee on Judiciary.
A bill to create the Michigan public defense act; to provide
for a public defense commission; to provide for a state office of
public defense; to provide for a state public defender and a state
appellate defender; to provide for attorney representation of
indigent criminal and juvenile defendants; to provide standards for
the appointment of legal counsel; to create the public defense
fund; to provide for deposits into and expenditures from the fund;
to provide for the assessment of certain fees; to require
dissemination of certain information to the public; and to repeal
acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"Michigan public defense act".
Sec. 2. The purpose of this act is to do all of the following:
(a) Establish a state public defense system to provide
effective assistance of counsel to criminal defendants who are
eligible for appointed counsel and juveniles in delinquency
proceedings who are entitled by law to assistance of counsel at
public expense.
(b) Ensure the system is free from undue political
interference and conflicts of interest.
(c) Provide that public defense services are delivered by
qualified and competent counsel in a manner that is fair and
consistent throughout the state.
(d) Establish a system that uses state employees, contracted
services, and members of the private bar in a manner that is
responsive to, and respectful of, community needs and interests.
(e) Ensure that adequate state funding of the state public
defense system is provided and managed in a fiscally responsible
manner.
Sec. 3. As used in this act:
(a) "Adult" means an individual 17 years of age or older.
(b) "Appellate defense bureau" or "bureau" means the appellate
defense bureau created under section 10.
(c) "Assigned counsel" means an attorney in private practice
who is not employed by the state office of public defense, a
nonprofit office of public defense, or a county office of public
defense and who is appointed by the state office of public defense
to represent eligible individuals.
(d) "Case" means a legal proceeding that charges an individual
with the commission of a crime or a delinquency or status offense
in a court of this state, a postconviction or postadjudication
proceeding, or another matter designated by the court or the
commission as a case under this act. A case may involve multiple
charges if those charges arise out of the same transaction or
occurrence or out of a related series of transactions or
occurrences.
(e) "Conflict counsel" means an attorney appointed to provide
public defense services in a case where a conflict of interest
exists.
(f) "Contract defense counsel" means an attorney providing
public defense services as a member of a contract defense office.
(g) "Contract defense office" means an attorney or group of
attorneys in private practice who contract with the office to
provide public defense services and who are not organized as a
nonprofit office of public defense or a county office of public
defense.
(h) "Contribution fee" means the amount an eligible individual
is assessed to recover a portion of the cost of legal
representation.
(i) "County office of public defense" means an office staffed
by county employees that provides public defense services under
contract with the office of public defense.
(j) "Court" means the supreme court, court of appeals, circuit
court, district court, family court, probate court, or municipal
court.
(k) "Eligible individual" means an adult or juvenile
determined to be eligible for public defense services under this
act.
(l) "Juvenile" means an individual under the age of 17 charged
in the family division of the circuit court or in the general
division of the circuit court with violating a criminal law or an
individual under the age of 17 charged in the family division of
the circuit court under section 2(a)(2) of chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.2.
(m) "Nonprofit office of public defense" means a nonprofit
corporation recognized under section 501(c)(3) of the internal
revenue code of 1986, 26 USC 501, that provides public defense
services under contract with the state office of public defense.
(n) "Plan" means the commission plan for providing public
defense services throughout this state.
(o) "Professional" means an expert, mental health and
substance abuse treatment specialist, educational specialist,
forensic evidence examiner including without limitation a DNA
expert, ballistic analyst, accident reconstruction expert,
mitigation expert, investigator, interpreter, dispositional
specialist, and any other individual employed or under contract to
provide professional services within the criminal justice system.
(p) "Public defense commission" or "commission" means the
public defense commission created under section 5.
(q) "Public defense fund" means the public defense fund
created under section 17.
(r) "Public defense services" means legal representation and
other services provided by the office to eligible individuals.
(s) "Region" means a judicial circuit or group of judicial
circuits designated by the commission as an administrative unit to
oversee the provision of public defense services.
(t) "Regional office" means an office administered by a
regional director appointed by the state public defender to oversee
public defense services in a region.
(u) "State appellate defender" means the state appellate
defender appointed under section 8.
(v) "State office of public defense" or "office" means the
state office of public defense created under section 5.
(w) "State public defender" or "public defender" means an
attorney employed full-time by the office, a nonprofit office of
public defense, or a court office of public defense and who is not
engaged in the private practice of law.
(x) "State public defense system", "state system", or "system"
means the state public defense system created under section 5.
Sec. 4. A court may order the office to appoint counsel under
this act in the following cases:
(a) In cases in which an individual is entitled by law to
assistance of counsel at public expense because of financial
inability to retain private counsel, subject to a determination of
eligibility under this act, including any of the following:
(i) For an individual charged with a felony or charged with a
misdemeanor for which there is a possibility of incarceration.
(ii) For an individual charged with a probation violation and
for an individual seeking or subject to the amendment of probation.
(iii) For an individual appealing a misdemeanor conviction or a
felony conviction or an adjudication of delinquency or seeking
other postconviction relief as directed by the commission.
(iv) For a witness in a criminal grand jury proceeding convened
under chapter VII of the code of criminal procedure, 1927 PA 175,
MCL 767.1 to 767.96.
(b) In cases in which an individual is entitled by law to the
assistance of counsel at public expense regardless of the
individual's financial ability to retain private counsel, including
any of the following:
(i) For a juvenile in a proceeding under chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.1 to 712A.32.
(ii) For a juvenile entitled to assigned counsel in a
proceeding under the interstate compact for juveniles, 2003 PA 56,
MCL 3.691 to 3.692.
(c) In other matters as directed by the court or approved by
the commission.
Sec. 5. (1) The state public defense system is created to
provide public defense services throughout this state.
(2) The public defense commission is created to head the state
system, supervise the office, and establish policies to implement
this act.
(3) The state office of public defense is created in the
judicial branch of state government to administer the system and
its regional offices under the supervision and direction of the
commission.
(4) The office is an autonomous entity having all statutory
authority, powers, duties, functions, records, personnel, property,
unexpended balances of appropriations, allocations, and other
funds, including the functions of budgeting, personnel, locating
offices, and other management functions.
Sec. 6. (1) The commission shall consist of 9 members who
shall be appointed by the governor for terms of 3 years. Of the 9
members, 2 members shall be recommended by the supreme court, 1
member shall be recommended by the Michigan judges' association, 1
member shall be recommended by the Michigan district judges'
association, 2 members shall be recommended by the state bar of
Michigan, 2 members shall be recommended by the criminal defense
attorneys association of this state, and 1 member, who is not an
attorney, shall be selected from members of the general public by
the governor. Appointments to the commission shall reasonably
reflect the population, geographic, and rural and urban diversity
of this state.
(2) Not fewer than 1 individual appointed to the commission
shall have significant experience in the representation of
juveniles in delinquency proceedings or a demonstrated commitment
to quality representation of juveniles in those proceedings. Not
fewer than 1 individual appointed to the commission shall have
significant experience in criminal appeals.
(3) At the time of appointment or while serving on the
commission, a member of the commission shall not be a sitting judge
or prosecuting attorney, or an individual employed by a prosecuting
attorney, a law enforcement agency, a probation department, or the
Michigan department of corrections, and shall not be a criminal
defense attorney employed by, or under contract with, the office.
(4) All commission members shall be appointed for terms of 3
years and shall hold office until their successors are appointed.
The terms of the members shall be staggered. Initially, 3 members
shall be appointed for a term of 3 years each, 3 members shall be
appointed for a term of 2 years, and 3 members shall be appointed
for a term of 1 year.
(5) The governor shall fill a vacancy occurring in the
membership of the commission, for the unexpired term only, in the
same manner as the original appointment and in a timely manner.
(6) Members of the commission shall not receive a salary in
that capacity but shall be reimbursed for their reasonable, actual,
and necessary expenses by the state treasurer.
(7) The commission shall establish procedures for the conduct
of its affairs and elect a presiding officer from among its
members.
(8) The commission shall promulgate policies necessary to
carry out its powers and duties under this act.
(9) The commission shall convene a public hearing before a
proposed policy becomes effective.
(10) Commission policies shall be placed in an appropriate
manual, made publicly available on an internet website, and made
available to all attorneys and professionals providing public
defense services, the supreme court, the senate and house
appropriations committees, and the senate and house fiscal
agencies.
Sec. 7. (1) The commission shall, with the assistance of the
office, develop a plan using methods consistent with the purposes
described in this act for providing public defense services that
divides the state into defense regions sufficient to provide
efficient provision of public defense services throughout this
state while addressing local needs. The plan shall do all of the
following:
(a) Establish an office in each region to oversee the
provision of all public defense services, as provided under the
commission's strategic plan, under the supervision of a regional
public defender.
(b) Ensure assigned counsel is a component of each regional
delivery system.
(c) Ensure that nonprofit state and county public defense
offices providing public defense services before the effective date
of this act are included in the plan for providing public defense
services in their regions, subject to compliance by those offices
with terms of their contracts with the office. Nothing in this act
shall cause a reduction in the total compensation for an employee
of any of those offices below his or her total compensation on the
effective date of this act.
(d) Allocate sufficient personnel, resources, training,
supervision, and physical facilities in each region to ensure the
efficient provision of effective assistance of counsel to eligible
individuals.
(e) Avoid conflicts of interest in the administration of
public defense services and in the appointment of conflict counsel.
(f) Establish policies for the receipt and resolution of
complaints from the courts, prosecutors, clients, and members of
the public.
(g) Establish polices for the collection and reporting of
detailed expenditure and caseload data to support ongoing planning
for defense service delivery and budgeting.
(2) The commission shall hold not less than 3 public hearings
on the proposed plan in separate geographical regions of this state
before adopting the plan.
(3) The commission shall periodically review any revisions to
the plan recommended by the office, and take such action it
considers appropriate.
(4) The commission shall ensure that client-related data
remain secure and that policies regarding access to that data and
procedures are established by the office to ensure confidentiality.
(5) The commission shall assist in the implementation of
programs that improve the criminal justice system and reduce
recidivism.
Sec. 8. (1) The commission shall establish the qualifications,
duties, and compensation of the state public defender and state
appellate defender. The commission shall appoint the state public
defender to head the office of public defense and the state
appellate defender to head the appellate defense bureau, after
considering qualified applicants.
(2) The commission shall regularly evaluate the performance of
the state public defender and the state appellate defender and
establish policies for the operation of the state office of public
defense.
(3) The commission shall ensure that attorneys employed by the
office, including the state public defender and state appellate
defender, meet all of the following criteria:
(a) Are licensed to practice law in this state and are members
in good standing of the state bar of Michigan.
(b) Take and subscribe to the oath required by the
constitution before taking office.
(c) Perform duties as may be provided by law.
(d) Represent eligible defendants as required by the office.
(e) Are prohibited from engaging in the private practice of
law or as an attorney or counselor in a court of this state except
in the exercise of his or her duties under this act.
(4) The commission shall review and approve proposals by the
state public defender to create permanent attorney and staff
positions within the office.
(5) All appointees and employees of the office are considered
employees of the judicial branch of state government and are exempt
from civil service under section 5 of article XI of the state
constitution of 1963.
(6) The commission shall adopt personnel policies and
procedures, and may adopt those policies and procedures by
reference to policies and procedures of other governmental
agencies.
(7) Compensation for full-time public defenders and staff
employed by the office shall be not less than the compensation paid
to assistant prosecuting attorneys and prosecuting attorney staff
with comparable duties and responsibilities in their respective
regions.
(8) The commission shall review and approve budget proposals
submitted by the state public defender.
Sec. 9. (1) The state public defender shall be the chief
administrative officer of the office and shall manage and oversee
the office while maintaining and honoring the independence of the
appellate defender bureau in matters related to representation of
clients and the supervision of its personnel. The state public
defender shall hire or contract for and supervise personnel
necessary to perform the function of the office and to implement
commission policies, the plan, and this act.
(2) The state public defender's duties include all of the
following:
(a) Acting as secretary to the commission and providing
administrative staff support to the commission.
(b) Assisting the commission in establishing the state system
and maintaining the system and establishing and enforcing the
policies required under this act.
(c) Establishing procedures to implement commission policies.
(d) Assisting the commission in developing the initial plan
for the provision of public defense services throughout this state
and submitting it to the commission for approval.
(e) Establishing procedures to provide for the approval,
payment, recording, reporting, and managing of defense expenses
paid under this act.
(f) Establishing an information technology system and
procedures to ensure that personnel providing public defense
services use information technology and workload management systems
so that detailed expenditure and workload data are accurately
collected, recorded, and reported.
(g) Establishing procedures for managing workloads and
assigning cases in a manner that ensures public defense attorneys
are assigned cases according to experience, training, and
manageable workloads, taking into account case complexity, the
severity of the charges and potential punishments, and the legal
skills required to provide effective assistance of counsel.
(h) Establishing procedures to prevent conflicts of interest
and, when they occur, ensuring conflicts are handled according to
professional ethical standards.
(i) Establishing and supervising a training, performance
monitoring, and evaluation program for all attorneys,
professionals, and administrative support staff providing public
defense services.
(j) Establishing procedures to handle complaints from clients,
judges, other criminal justice personnel, and the public, and
ensuring clients are aware of procedures for bringing complaints.
(k) Establishing administrative procedures for regional
offices.
(l) Reviewing the commission plan on an annual basis and
recommending modifications as required.
(m) Submitting biennial reports for the commission's approval
and dissemination of certain information in accordance with this
act.
(n) Serving as a liaison between the commission and the court.
(o) Requesting funding for additional personnel if workload
standards are consistently exceeded.
(p) Seeking gifts, grants, and donations that may be available
through federal, state, or local governments, foundations,
corporations, private individuals, or other sources to help fund
the system.
(q) Exploring and assisting in the development of programs to
improve the criminal justice system and reduce recidivism.
(r) Working with the commission and the state appellate
defender to provide the efficient and effective delivery of public
defense services.
(s) Performing all other duties assigned by the commission
under this act.
Sec. 10. (1) The appellate defense bureau is created in the
office. The commission shall hire and supervise a state appellate
defender to manage the bureau. The commission shall establish
policies to ensure the independence of the appellate defense bureau
and to avoid conflicts of interest in the administration of the
system.
(2) The state appellate defender's duties include all of the
following:
(a) Assisting the commission in developing the initial plan,
with the state public defender, for providing public defense
services throughout this state and submitting it to the commission
for approval.
(b) Managing the appellate defense bureau and overseeing the
provision of appellate, postconviction, and postadjudication public
defense services.
(c) Hiring or contracting for and supervising the personnel
authorized by the commission to perform the functions of the bureau
and to implement commission policies, office procedures, and this
act.
(d) Ensuring assigned counsel and attorneys employed by, or
under contract with, the bureau who are providing appellate public
defense services comply with the commission policies, office
procedures, and this act.
(e) Collecting data, keeping a detailed record of bureau
expenses and appellate public defense services, and submitting
records and reports to the state public defender as required to
implement commission policies, office procedures, and this act.
(f) Maintaining a repository of pleadings, databases, and
legal resources and making them available to all attorneys
providing public defense services.
(g) Ensuring that conflicts are promptly identified and
handled in a manner consistent with professional ethics and this
act.
(h) Recommending appellate policies and procedures and
assisting the state public defender in implementing commission
policies, office procedures, and this act.
(i) Working with the commission and the state public defender
to provide efficient and effective provision of public defense
services.
Sec. 11. The state public defender shall establish regional
offices and appoint regional public defenders to oversee the
efficient provision and oversight of nonappellate public defense
services within those regions. Within their respective regions,
regional public defenders' duties include all of the following:
(a) Ensuring that the provision of nonappellate public defense
services in the region is in compliance with commission policies,
office procedures, and this act.
(b) Administering the regional office and supervising and
evaluating regional office staff.
(c) Ensuring that the regional office works closely with the
courts in the region to ensure efficient and effective defense
representation.
(d) Maintaining rosters of qualified assigned counsel.
(e) Appointing attorneys in a timely manner and ensuring case
assignments are fairly distributed to attorneys who provide public
defense services in the region.
(f) Monitoring workloads, notifying the office of public
defense when workload standards are consistently exceeded, and
making recommendations to ensure compliance with workload
standards.
(g) Collecting data and preparing reports as required by the
commission and the office.
(h) Ensuring attorneys in the region have access to the
resources, professionals, and training required by the plan.
(i) Implementing training, and implementing performance
monitoring and evaluation programs for attorneys providing public
defense services in the region.
Sec. 12. (1) All attorneys providing public defense services
under this act shall be licensed to practice law in this state and
be members in good standing of the state bar of Michigan.
(2) The commission shall establish state standards for public
defense services to ensure services are provided by competent
counsel and in a manner that is fair and consistent throughout the
state. The standards shall address all of the following:
(a) The level of education and experience required to provide
effective representation, based on case complexity and severity of
the charges and potential punishments.
(b) Acceptable workloads that take into account case
complexity, the severity of charges, client factors such as mental
illness, and potential punishments in a case.
(c) The availability of, access to, and use of professional
services that may be required for a case, including, but not
limited to, paralegals, investigators, and expert witnesses.
(d) The availability of, access to, and use of technology and
legal resources.
(e) The availability of, access to, and completion of training
and continuing education requirements.
(f) Practice standards.
(g) Performance criteria.
(h) Performance evaluation procedures.
(3) The commission shall establish procedures to monitor
workloads and policies to prevent workload in excess of commission
standards.
(4) An attorney or professional providing public defense
services shall not be required to maintain a workload in excess of
the workload standards established by the commission.
(5) The commission shall establish policies to ensure that all
of the following criteria are met:
(a) Attorneys are appointed to represent clients in a timely
and equitable manner.
(b) Cases are assigned to attorneys with the skills, training,
and experience to handle them and whose workloads are within the
limits established by commission policies.
(c) Conflicts of interest are identified and those cases
involving a conflict of interest are handled according to
professional and ethical standards. There shall be a presumption
that all codefendants have conflicts that require the appointment
of conflict counsel.
(d) In appropriate cases, clients are assessed for mental
illness, addiction, and other underlying issues and a client
rehabilitation plan is provided to the sentencing judge. The plan
shall use available community resources, rather than incarceration,
where appropriate.
(6) This act does not permit the commission or the office to
interfere with the reasonable professional judgment exercised by an
attorney in connection with his or her representation of an
individual eligible for public defense services.
Sec. 13. (1) When a court orders the office to appoint
counsel, the office shall immediately appoint counsel, even if the
individual has yet to be determined eligible for public defense
services.
(2) An individual for whom counsel is appointed is entitled to
the full benefit of public defense services until that individual
is determined to be ineligible for services or the individual
wishes to proceed pro se and the court permits him or her to do so.
(3) A qualified attorney shall be appointed to meet with any
juvenile who wishes to waive his or her right to counsel to ensure
he or she fully understands the consequences of that waiver.
(4) The attorney providing public defense services shall
continually represent his or her adult client from that client's
initial assignment of counsel through sentencing, unless otherwise
provided by commission policies or relieved of his or her duties.
The attorney providing public defense services to a juvenile in the
family division of the circuit court shall continually represent
that juvenile from the initial assignment of counsel until the case
is dismissed or closed, including all postdisposition hearings,
unless otherwise provided by commission policies or relieved of his
or her duties.
Sec. 14. (1) The commission shall establish policies to ensure
contracting for public defense services is done fairly and
consistently statewide and within each region. The policies
established under this subsection shall provide for all of the
following:
(a) Attorney qualifications.
(b) Adherence to standards promulgated by the commission,
including, but not limited to, performance standards.
(c) Standards defining adequate access by attorneys to support
services, including technology, legal resources, professionals, and
administrative support staff.
(d) Workload standards that define, among other things, the
extent to which attorneys employed by a contract defense office may
engage in private practice.
(e) Reporting and workload monitoring.
(f) Supervision, performance monitoring, and performance
evaluation.
(g) Conflict resolution.
(h) Training and continuing education, in accordance with
commission standards.
(2) The state public defender shall provide for contract
oversight and enforcement to ensure compliance with commission
policies, office procedures, and this act.
(3) Contracts executed under this section shall not be based
solely on a fixed fee paid regardless of the number of cases
assigned.
(4) The commission shall establish reasonable compensation
rates for contracted services.
(5) The state office of public defense shall ensure that
payments to contractors are made in a timely fashion.
Sec. 15. The office may enter into agreements and contracts
with departments and agencies of the judicial or executive branch
of state government, as well as local units of government,
including counties and municipalities, to carry out its duties
under this act.
Sec. 16. (1) The commission shall establish policies governing
the manner in which cases are allocated to assigned counsel to
ensure that cases are allocated in a fair and equitable manner.
(2) The commission shall require assigned counsel to comply
with all commission policies, office procedures, and this act,
including those regarding qualifications, performance, training,
continuing education, supervision, workloads, conflicts of
interest, and reporting.
(3) The commission shall require assigned counsel to have the
physical facilities, equipment, access to professionals, including
experts and investigators, and administrative support to provide
effective assistance of counsel.
(4) The office shall establish procedures to ensure assigned
counsel's compliance with commission policies, office procedures,
and this act.
(5) The commission shall establish a reasonable compensation
schedule for assigned counsel and review those rates every 2 years.
(6) The office shall ensure payments to assigned counsel are
made in a timely fashion.
Sec. 17. (1) This state shall be responsible for all costs of
the public defense system and public defense services to ensure the
right to counsel under the constitution of the United States and
the state constitution of 1963.
(2) The public defense fund is created as a separate account
in the department of treasury. Money in the fund shall be used only
for the operation of the system. The unencumbered balance and all
interest earnings remaining in the fund at the close of the fiscal
year shall remain in the fund and shall not revert to the general
fund.
(3) All contribution fees collected by the courts under
section 1k(1)(b)(iii) of chapter IX of the code of criminal
procedure, 1927 PA 175, MCL 769.1k, if any, shall be deposited in
the public defense fund for use by the office.
(4) The legislature shall annually make an appropriation to
the public defense fund to implement this act and to ensure that
the right to counsel under the constitution of the United States,
the state constitution of 1963, and this act is adequately funded.
(5) The public defense fund shall be administered by the
commission, through the office, in compliance with policies
promulgated by the commission and the laws of this state. The
commission, through the office, may solicit additional funding for
the state public defense service system from federal, state, and
local governments, and foundations, corporations, individuals, and
any other public or private sources, provided that the receipt of
those funds does not conflict with the commission's mission or
create an appearance of impropriety. The funds, if received, shall
be deposited in the public defense fund. The funds, if received, do
not diminish the responsibility of this state under this section.
Sec. 18. The commission shall establish and maintain an
internet website containing all of the following information:
(a) All policies and procedures in effect for the operation
and administration of the state public defense system.
(b) All standards established or being considered by the
commission or the state public defender.
(c) The number of regional public defenders, including a
description of the geographic region supervised by each.
(d) The number of assigned counsel and attorneys employed by
the office or employed by entities that have contracted with the
system who are providing public defense services and identified by
region.
(e) The number of attorneys and other staff supervised by each
regional public defender.
(f) The number of new cases in which counsel was assigned to
represent a party, disaggregated by region, court, and case type.
(g) The total number of individuals represented by the office
identified by region, court, and case type.
(h) The annual caseload and workload of each attorney
providing public defense services identified by region, court, and
case type.
(i) The training programs conducted by the office and the
number of attorney and nonattorney staff that attended each
program.
(j) The continuing education courses on criminal defense or
criminal procedure attended by each attorney providing public
defense services.
(k) Detailed expenditure data by region, court, and case type.
(l) All other financial, client demographic, and workload data
needed to assist in determining the appropriate amount of funding
needed to ensure the delivery of effective representation and to
assist in planning.
Sec. 19. (1) An applicant is eligible for appointed counsel
under this act if 1 or more of the following criteria apply:
(a) The applicant's income is not more than 133% of the
poverty level set according to the most current federal poverty
guidelines updated periodically in the federal register by the
United States department of health and human services under the
authority of 42 USC 9902(2).
(b) The applicant qualifies for and receives public
assistance, including, but not limited to, food assistance,
medicaid benefits administered under section 105 of the social
welfare act, 1939 PA 280, MCL 400.105, and social security
disability benefits, resides in public housing, or receives other
means-tested assistance.
(c) The applicant, at the time representation is requested,
does not have readily available or unencumbered assets, credit, or
other means to retain counsel and to provide for other costs of his
or her defense without subjecting the applicant or the applicant's
dependents to substantial financial hardship, and has not disposed
of any assets since the date and time of the charged offense with
the intent or for the purpose of establishing eligibility for
assistance under this act. An applicant or an applicant's
dependents shall be considered to suffer substantial financial
hardship if they would be deprived of funds needed for basic living
necessities including, but not limited to, food, shelter, clothing,
necessary medical expenses, and child support.
(d) The applicant is a juvenile whose parents would otherwise
be eligible for public defense services under this section or are
unwilling to retain counsel to represent the juvenile.
(2) Eligibility shall not be denied solely because of an
applicant's ability to post bail or solely because the applicant is
employed.
(3) The courts shall conduct all eligibility screening under
policies established by the commission. The presiding judge,
prosecuting attorney, an employee of a prosecuting attorney, or an
attorney providing public defense services shall not conduct
eligibility screening.
(4) An individual shall be screened for eligibility as soon as
possible after arrest, detention, or request for counsel.
(5) Eligibility determination proceedings are confidential.
Information divulged during the screening process shall not be used
against an applicant in any civil or criminal proceeding, except in
the sentencing phase when determining restitution, to enforce
collections, or to prosecute perjury under this act.
(6) If the court determines there is no substantial financial
hardship under this section, the court shall set forth the factors
upon which the determination was made in the record.
(7) An applicant has a right to appeal the determination of
ineligibility. While the appeal is pending, the office shall
provide public defense services.
(8) The court may modify a determination of eligibility if
additional material information becomes available or if the
applicant's financial circumstances change.
(9) In determining an applicant's income, a court shall use
the applicant's federal adjusted gross income, without regard to
loss, as that term is defined in section 62 of the internal revenue
code of 1986, 26 USC 62, plus all nontaxable income including, but
not limited to, all of the following:
(a) The amount of a pension or annuity, including railroad
retirement act benefits and veterans' disability benefits.
(b) The amount of capital gains excluded from adjusted gross
income.
(c) Alimony.
(d) Child support money.
(e) Nontaxable strike benefits.
(f) Cash public assistance and relief.
(g) Interest on federal, state, county, and municipal bonds.
(h) All payments received under the social security act, 42
USC 301 to 1397jj, except social security income paid directly to a
nursing home.
(10) A determination of eligibility shall not be reexamined
absent compelling reason.
(11) The commission shall promulgate policies to implement
this section that accomplish all of the following:
(a) Ensure that the eligibility determination process is fair
and consistent throughout this state.
(b) Avoid unnecessary duplication of processes.
Sec. 20. (1) The court may order an adult who receives public
defense services or the parents of a juvenile who receives public
defense services to pay a portion of the costs associated with
receiving those services under section 1k(1)(b)(iii) of chapter IX of
the code of criminal procedure, 1927 PA 175, MCL 769.1k. The order
shall be made on the record at the time of sentencing, and after a
determination that repayment will not constitute a substantial
financial hardship under section 19. The order shall be contained
in the judgment of sentence.
(2) Subsection (1) does not apply to cases ending in acquittal
or dismissal of all charges.
(3) An individual who has been ordered to pay a portion of the
cost of public defense service may petition the court at any time
to waive the payment, if that payment will result in substantial
financial hardship to the person or the person's dependents'
substantial financial hardship as that term is described in section
19.
(4) An attorney providing public defense services shall not
pursue payment from his or her client for any costs related to
public defense services.
(5) A person shall not be imprisoned, denied bond, denied
counsel, have his or her probation or parole revoked, or otherwise
face a penalty for failure to pay all or any portion of public
defense services under this act, unless a court determines both of
the following:
(a) That the failure to pay is willful.
(b) That the individual is able to make the payment without
substantial financial hardship to that individual or his or her
dependents under section 19.
(6) The court may enforce a person's obligation to pay all or
any portion of the cost of legal representation under this act in
the same manner as a judgment in a civil action, if the enforcement
will not impose a substantial financial hardship under section 19.
(7) An applicant shall be informed at the time of eligibility
screening, both orally and in writing, that he or she may be
assessed a portion of the cost of his or her public defense
services, if a court determines that the assessment will not cause
substantial financial hardship under section 19. If possible, the
applicant also shall be provided with the projected amount of the
portion of that cost.
(8) An order for payment of costs for public defense services
under this section is the exclusive means by which the cost of
public defense services shall be recouped.
Sec. 21. The appellate defender act, 1978 PA 620, MCL 780.11
to 780.719, is repealed.