REFORMING MICHIGAN’S CRIMINAL INDIGENT DEFENSE SYSTEMS:
CHIEF JUDGES’ AND COURT ADMINISTRATORS’ EXPERIENCES AND PERCEPTIONS
By
Ksenia Petlakh

A DISSERTATION
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
Criminal Justice – Doctor of Philosophy
2017

ABSTRACT
REFORMING MICHIGAN’S CRIMINAL INDIGENT DEFENSE SYSTEMS:
CHIEF JUDGES’ AND COURT ADMINISTRATORS’ EXPERIENCES AND PERCEPTIONS
By
Ksenia Petlakh
The need for improvement across Michigan’s criminal indigent defense systems has long
been recognized, and new legislation has created the opportunity to reform the quality of
criminal indigent defense across the state. With the creation of the Michigan Indigent Defense
Commission and the establishment of the first set of minimum standards for criminal indigent
defense, this study uses this unique time in Michigan’s history to study implementation of reform
in the courts at a critical time.
Using implementation science and role theory to guide the study, key stakeholders—
chief judges and court administrators—were surveyed anonymously across the State of
Michigan. They were queried on the current state of criminal indigent defense in their
jurisdiction, their perceptions on the new reform, and their role in implementing this new reform.
Their experiences and perceptions provide insight into the critical role that key stakeholders’
perceptions play in implementing reform in organizations.
Findings indicate that while there is widespread support for the reform effort for criminal
indigent defense systems in Michigan, there is skepticism that the state will provide adequate
funding in order to ensure the success of the reform. There are also concerns about the logistics
of the reform as well as some confusion about the specific roles that chief judges and court
administrators will fulfill in the implementation process. The study provides insight into the
thought processes of key stakeholders at a critical starting point of reform implementation.

Copyright by
KSENIA PETLAKH
2017

ACKNOWLEDGEMENTS

I am very grateful for the support I have received throughout graduate school. I would
like to thank my committee chair, Dr. Edmund McGarrell, and my committee members, Dr.
Maureen Conner, Dr. C. Emily Durbin, and Dr. Christopher E. Smith, for their guidance.
My family’s encouragement has been instrumental throughout my life. Thank you to my
parents, Max and Tanya, for always investing your time and energy into helping me succeed.
Thank you to my sister, Nadia, for supporting my goals and for being a positive force in my life.
Thank you to my mentor and friend, David, for inspiring me to start this journey and
pursue my doctorate.

iv

TABLE OF CONTENTS

LIST OF TABLES

vii

CHAPTER 1: INTRODUCTION
First Set of Minimum Standards
The Roles of Chief Judges and Court Administrators
Overview

1
5
6
8

CHAPTER 2: LITERATURE REVIEW
Current State of Indigent Defense
Significance of Defense
Models of Indigent Defense Delivery
Assigned Counsel System
Contract System
Public Defender System
Diversity of Michigan’s Counties
Violations of the Constitution and the American Bar Association’s Principles
Quick Disposal of Cases
Lack of Accountability and Uniform Review Process
Lack of Judicial Independence
Lack of Parity Between Defense and Prosecution
Creation of the Michigan Indigent Defense Commission to Address Issues
Discretion, Court Culture, and Implementing Reform

9
9
11
13
13
14
16
18
19
19
20
20
21
22
23

CHAPTER 3: THEORETICAL FRAMEWORK
Implementation Science
Role Theory
Purpose of the Study

25
25
27
28

CHAPTER 4: METHODOLOGY
Chief Judges and Court Administrators
Foundational Interviews
Research Questions
Sampling and Recruitment
Analysis Plan

30
30
30
31
33
33

CHAPTER 5: FINDINGS
36
Characteristics of Respondents
36
Respondents’ Perceptions of Defense Systems
43
Perceptions of Funding
52
Respondents’ Perceptions of Michigan Indigent Defense Commission Standards 59
Need for Reform
66

v

Summary of Quantitative Findings
Open-Ended Questions
Involvement and Role in Creating Compliance Plans
Anticipated Changes to Responsibilities
Respondents’ Thoughts on Changes That Minimum Standards May Bring
Challenges in Implementing the MIDC’s First Set of Minimum Standards
Additional Insight from Chief Judges and Court Administrators

73
74
77
79
80
82
83

CHAPTER 6: DISCUSSION
Overall Response
Funding
First Appearance
Issues for Rural Counties
Different Perspectives
Roles
Implementation Facilitators and Barriers

86
87
87
88
88
89
89
90

CHAPTER 7: CONCLUSION
Policy Recommendations
Limitations of the Study
Future Research

93
94
94
95

APPENDICES
97
Appendix A: Survey Instrument
98
Appendix B: Enclosure Letter
100
Appendix C: Full Text of The First Set of Minimum Standards from MIDC
102
Appendix D: Michigan Indigent Defense Commission Act
108
Appendix E: An Act to Amend the Michigan Indigent Defense Commission Act 122
REFERENCES

128

vi

LIST OF TABLES

Table 1a.

Current Position of Respondents (by court type)

37

Table 1b.

Current Position of Respondents (by county type)

38

Table 2a.

Respondents from Urban Counties

39

Table 2b.

Respondents from Rural Counties

39

Table 3a.

System Type by County

40

Table 3b.

Indigent Defense Systems Utilized

41

Table 4a.

Type of Court

42

Table 4b.

Type of Court by County Type

43

Table 5a.

Perception of private and public defenders, by position

45

Table 5b.

Perception of private and public defenders, by position
(Kruskal-Wallis H-test)

46

Table 5c.

Perception of private and public defenders, by court type

47

Table 5d.

Perception of private and public defenders, by court type
(Kruskal-Wallis H-test)

48

Table 5e.

Perception of private and public defenders, by urban-rural county

49

Table 5f.

Perception of private and public defenders, by urban-rural county
(Kruskal-Wallis H-test)

49

Table 5g.

Perception of private and public defenders, by system type

51

Table 5h.

Perception of private and public defenders, by system type
(Kruskal-Wallis H-test)

52

Table 6a.

Perception of sufficiency of funding for indigent defense, by position

53

Table 6b.

Perception of sufficiency of funding for indigent defense, by position
(Kruskal-Wallis H-test)

54

Perception of sufficiency of funding for indigent defense, by court type

55

Table 6c.

vii

Table 6d.

Perception of sufficiency of funding for indigent defense, by court type
(Kruskal-Wallis H-test)

55

Perception of sufficiency of funding for indigent defense,
by rural-urban county

56

Perception of sufficiency of funding for indigent defense,
by rural-urban county (Kruskal-Wallis H-test)

57

Perception of sufficiency of funding for indigent defense,
by system type

58

Perception of sufficiency of funding for indigent defense,
by system type (Kruskal-Wallis H-test)

59

Table 7a.

Familiarity with MIDC minimum standards, by position

60

Table 7b.

Familiarity with MIDC minimum standards, by position
(Kruskal-Wallis H-test)

61

Table 7c.

Familiarity with MIDC minimum standards, by court type

62

Table 7d.

Familiarity with MIDC minimum standards, by court type
(Kruskal-Wallis H-test)

63

Familiarity with MIDC minimum standards,
by rural-urban county

64

Familiarity with MIDC minimum standards,
by rural-urban county (Kruskal-Wallis H-test)

64

Table 7g.

Familiarity with MIDC minimum standards, by system type

65

Table 7h.

Familiarity with MIDC minimum standards, by system type
(Kruskal-Wallis H-test)

66

Perception of necessity of indigent defense reform in Michigan,
by position

67

Perception of necessity of indigent defense reform in Michigan,
by position (Kruskal-Wallis H-test)

68

Perception of necessity of indigent defense reform in Michigan,
by court type

69

Table 6e.
Table 6f.

Table 6g.
Table 6h.

Table 7e.

Table 7f.

Table 8a.

Table 8b.

Table 8c.

viii

Table 8d.

Table 8e.

Table 8f.

Table 8g.

Table 8h.

Perception of necessity of indigent defense reform in Michigan,
by court type (Kruskal-Wallis H-test)

70

Perception of necessity of indigent defense reform in Michigan,
by rural-urban county

71

Perception of necessity of indigent defense reform in Michigan,
by rural-urban county (Kruskal-Wallis H-test)

71

Perception of necessity of indigent defense reform in Michigan,
by system type

72

Perception of necessity of indigent defense reform in Michigan,
by system type (Kruskal-Wallis H-test)

73

ix

CHAPTER 1: INTRODUCTION

Despite the universal understanding that a right to counsel requires competence of
attorneys, parity between the prosecution and the defense, and adequate time and resources, it
has been well-documented that many states struggle to provide basic levels of legal counsel for
indigent defendants (Green, 2003; Lucas, 2013; Schulhofer & Friedman, 1993; Vick, 1995).
Michigan’s government has recognized this disparity in legal representation and has sought to
address the systemic issues in the criminal justice system that result from a lack of resources,
infrastructure, and accountability.
In an attempt to address the issues in the quality of criminal indigent defense, Governor
Richard Snyder created the Indigent Defense Advisory Commission through an executive order
in October 2011. The commission’s role was to analyze and recommend improvements to
Michigan’s legal system. The commission recommended changes that became the foundation
for legislation which created the Michigan Indigent Defense Commission (MIDC). The MIDC’s
role includes developing and providing oversight for the minimum standards of indigent defense
as stated in the United States Constitution, as well as the state constitution of 1963, and the
Michigan Indigent Defense Commission Act. The MIDC gathers data and creates standards in
order to improve legal counsel to indigent defendants (MIDC, n.d.). Please see Appendix D for
the text of the Michigan Indigent Defense Commission Act and Appendix E for the text of the
act that amended the Michigan Indigent Defense Commission Act.
Michigan consists of 83 counties, and until the minimum standards were created, no
oversight at the state level existed to ensure the protection of indigent criminal defendants’
rights. With the creation of the Michigan Indigent Defense Commission, the state is reviewing

1

indigent defense across the state of Michigan, gathering data about the different systems across
the counties, and creating minimum standards for criminal indigent defense that each county
must follow.
There are three main models for providing indigent defense: (1) the assigned counsel
model, (2) the contract model, and (3) public defender programs (Davies & Worden, 2009;
Frederique, Joseph, & Hild, 2014; Majd & Puritz, 2009; Spangenberg & Beeman, 1995). In the
assigned counsel model, judges choose which attorneys will provide indigent defense
(Spangenberg & Beeman, 1995). This places defense attorneys in this system at a disadvantage
because judges can remove defense attorneys or decide not to assign them in the future. In those
appointed counsel systems for which judges directly control appointments, attorneys can be
afraid of displeasing judges. Although judicial discretion can remove incompetent or unqualified
attorneys, there is a lack of oversight in terms of ensuring that attorneys are not removed for
personal reasons. A defense attorney that may be viewed as difficult because of the manner in
which he or she advocates for the defendant is at risk for not being assigned to cases again
(Spangenberg & Beeman, 1995). This lack of independence can create issues for defendants,
who are relying on their attorneys to represent them, especially if attorneys’ jobs are at stake if
they are seen as creating problems in the court. The contract model is systematically flawed
because it incentivizes hiring the lowest bidder, regardless of quality or legal competence
(Spangenberg & Beeman, 1995). In contract models, there are rarely enough resources in terms
of time, funding, or expert witnesses in order to provide a quality legal defense (Spangenberg &
Beeman, 1995).
The MIDC recognized that there was no state oversight to ensure that defense attorneys
for indigent defendants are adequately trained, that defendants received counsel during their first

2

appearance in court and at critical stages throughout their case, that counsel was prepared, and
that they had access to independent investigators and could request these services for their
defendants. Consequently, the first set of minimum standards addressed this lack of oversight on
these issues. These minimum standards were approved by the Michigan Supreme Court and
counties are required to report back to the MIDC about their progress in implementing these
standards. Future sets of minimum standards will go through the same process of Supreme Court
approval.
As social science research frequently focuses on practical issues in the real world, it is
important that research on implementation of reform is pursued. Positive outcomes depend on
successful implementation of effective reform (Fixsen, Blase, Timbers, & Wolf, 2001; Leschied
& Cunningham, 2002). Understanding the context of reform implementation is necessary in
order to successfully implement reform, which includes comprehensively understanding the
individuals that will be implementing the policy as well as those that will be affected by it
(Andrews & Bonta, 2010; Berman, 1978; Feeley, 1983; Harland & Harris, 1987). Part of
understanding context requires understanding the goals of the reform and ensuring the
implementation is studied in a comprehensive manner (Casper & Brereton, 1984). In order to
understand context, the perspectives of key stakeholders as well as those in charge of
implementing reform must be understood. When stakeholders and street-level implementers are
not involved in creating and implementing new policies—and when their perspectives are not
taken into account—criminal justice reform is more likely to fail—and this failure has been
noted by researchers (Adler, 2007; DeLeon & DeLeon, 2002; Feeley, 1983; Fixsen, Naoom,
Blase, Friedman, & Wallace, 2005; Hill, 2003; McGarrell, Rivera, & Patton, 1990). Research
across various types of organizations has shown support for including employees and ensuring

3

support as an important method in increasing the likelihood of successful implementation
(Ramarapu, Mehra, & Frolick, 1995; Salanova, Cifre, & Martin, 2004; Small & Yasin, 2000).
Changes that occur in the criminal justice system are inherently important as they impact
the lives of real people and impact the perception of legitimacy of the whole system. This is why
it is particularly important to understand and study reform implementation. A well thought-out
plan can fail if stakeholders are not supportive of the reform, and a variety of issues can occur at
the planning stage, especially if a comprehensive understanding of the context in which reform
occurs is not present throughout the planning process.
In order to gain the support and commitment of key stakeholders, a comprehensive
understanding of the context in which reform is implemented is necessary. This study seeks to
not only examine how chief judges and court administrators define their roles when they are in
charge of implementing reform that currently focuses on administration and recordkeeping, but
also contribute to the literature on implementation science. Without surveying key stakeholders,
it is difficult to know what their main concerns are in the reform process—and without knowing
these concerns—it is impossible to address them.
Although this study specifically focuses on chief judges and court administrators (due to
their leadership and administrative responsibilities in the courts) in Michigan as they prepare to
implement reform in their criminal indigent defense systems across their jurisdictions, the
findings can illuminate the responses of key stakeholders when they are faced with reform at the
county level that has been largely engineered at the state level.

4

First Set of Minimum Standards
The first set of minimum standards was approved in summer 2016. They focus on four
main areas: (1) training and education, (2) the initial client interview, (3) the availability and use
of experts and investigators, and (4) having counsel at first appearance in court and other critical
stages in front of a judge (MIDC, 2016). The standard covering training and education requires
defense attorneys to continue their legal education so they stay current with legal skills that can
assist indigent defendants. This standard covers knowledge of the law, knowledge of scientific
evidence and applicable defense, knowledge of technology, and continuing education. The
standard covering the initial client interview requires that “[d]efense counsel is provided
sufficient time and a space where attorney-client confidentiality is safeguarded for meetings with
defense counsel’s client” (MCL 780.991(2)(a)). This standard focuses on the timing and purpose
of the interview, the setting of the interview, preparation for the interview—counsel is required
to have copies of any relevant documents for the client’s case, and evaluating the client’s status
in terms of the client’s capability of participating in his or her own defense and understanding the
charges against him or her. The standard covering the use of experts and investigators requires
counsel to conduct an independent investigation of the charges as quickly as possible, request
funding to secure an independent investigator to assist with defense in relevant cases, request
funding for experts to aid in defense in relevant cases, and continuously evaluate the defendant’s
case “for appropriate defense investigations or expert assistance” (MIDC, 2016). The last
standard, counsel at first appearance and other critical stages, requires assigning counsel to
defendants immediately after they are determined to qualify for indigent defense, and once
defendants qualify, they must have “appointed counsel at pre-trial proceedings, during plea
negotiations and at other critical stages, whether in court or out of court” (MIDC, 2016). See

5

Appendix C for the full text of the first set of minimum standards. The MIDC has identified
future areas that will be addressed through minimum standards. These areas include the number
of cases each defense attorney will be responsible for, the qualifications of defense attorneys, fair
compensation for defense attorneys, and the independence of the indigent defense function from
the judiciary (MIDC, 2016).
All 83 counties in Michigan are required to comply with the minimum standards outlined
by the MIDC. In order to move forward, the MIDC’s Regional Consultants worked with court
administrators, judges, and practitioners across counties to discuss compliance plans for the
implementation of the minimum standards. Upon the adoption of standards by the Michigan
Supreme Court, counties must provide the MIDC with their compliance plans within 180 days,
and the MIDC has 60 days to approve the compliance plans. The MIDC collects data on the
compliance of the minimum standards as required by the MIDC Act. Querying Michigan’s chief
judges and court administrators on their perceptions of indigent defense and their role in
implementing the new minimum standards provided novel insight into reform implementation
and how the perception of one’s role influences their actions in light of reform.
The Roles of Chief Judges and Court Administrators
Chief judges and court administrators fulfill key roles in the criminal indigent defense
systems in their counties. They both hold leadership roles and have administrative duties that are
crucial to the operations of the court. In Michigan, there is some variation across courts in terms
of what responsibilities are shared between chief judges and court administrators, and each court
has its own unique culture. However, according to the Michigan Court Rules, chief judges have

6

specific duties.1 Court administrators are crucial in that they manage the operations of the court
in order to help ensure procedural due process, equal protection, and the efficient management of
time and resources across court cases. Due to the critical roles that chief judges and court
administrators fulfill, both were chosen to be surveyed for this study.

1

Section C of MCR 8.110 states that chief judges have the following responsibilities:
“(1) A chief judge shall act in conformity with the Michigan Court Rules, administrative orders of the Supreme
Court, and local court rules, and should freely solicit the advice and suggestions of the other judges of his or her
bench and geographic jurisdiction. If a local court management council has adopted the by-laws described in AO
1997-6 the chief judge shall exercise the authority and responsibilities under this rule in conformity with the
provisions of AO 1997-6.
(2) As the presiding officer of the court, a chief judge shall: (a) call and preside over meetings of the court; (b)
appoint committees of the court; (c) initiate policies concerning the court's internal operations and its position on
external matters affecting the court; (d) meet regularly with all chief judges whose courts are wholly or partially
within the same county; (e) represent the court in its relations with the Supreme Court, other courts, other agencies
of government, the bar, the general public, and the news media, and in ceremonial functions; and (f) counsel and
assist other judges in the performance of their responsibilities.
(3) As director of the administration of the court, a chief judge shall have administrative superintending power and
control over the judges of the court and all court personnel with authority and responsibility to: (a) supervise
caseload management and monitor disposition of the judicial work of the court; (b) direct the apportionment and
assignment of the business of the court, subject to the provisions of MCR 8.111; (c) determine the hours of the court
and the judges; coordinate and determine the number of judges and court personnel required to be present at any one
time to perform necessary judicial administrative work of the court, and require their presence to perform that work;
(d) supervise the performance of all court personnel, with authority to hire, discipline, or discharge such personnel,
with the exception of a judge's secretary and law clerk, if any; (e) coordinate judicial and personnel vacations and
absences, subject to the provisions of subrule (D); (f) supervise court finances, including financial planning, the
preparation and presentation of budgets, and financial reporting; (g) request assignments of visiting judges and
direct the assignment of matters to the visiting judges; (h) effect compliance by the court with all applicable court
rules and provisions of the law; and (i) perform any act or duty or enter any order necessarily incidental to carrying
out the purposes of this rule.
(4) If a judge does not timely dispose of his or her assigned judicial work or fails or refuses to comply with an order
or directive from the chief judge made under this rule, the chief judge shall report the facts to the state court
administrator who will, under the Supreme Court's direction, initiate whatever corrective action is necessary.
(5) The chief judge of the court in which criminal proceedings are pending shall have filed with the state court
administrator a monthly report setting forth the reasons for delay in the proceedings:
(a) in felony cases in which there has been a delay of 28 days between the hearing on the preliminary examination or
the date of the waiver of the preliminary examination and the arraignment on the information or indictment; (b) in
felony cases in which there has been a delay of 6 months between the date of the arraignment on the information or
indictment and the beginning of trial; (c) in misdemeanor cases in which there has been a delay of 6 months between
the date of the arraignment on the warrant and complaint and the beginning of the trial;
(d) in felony cases in which a defendant is incarcerated longer than 6 months and in misdemeanor cases in which a
defendant is incarcerated longer than 28 days.
(6) A chief judge may delegate administrative duties to a trial court administrator or others.
(7) Where a court rule or statute does not already require it, the chief judge may, by administrative order, direct the
clerk of the court to provide litigants and attorneys with copies of forms approved by the state court administrator. In
addition, except when a court rule or statute specifies that the court or clerk of the court must provide certain forms
without charge, the administrative order may allow the clerk to provide the forms at the cost of reproduction to the
clerk.”

7

Overview
In the following chapters, the current state of criminal indigent defense in Michigan, the
literature on reform implementation, role theory, implementation science, the methodology
utilized in this study, the findings, discussion, conclusion, and implications for future research
will be covered. The next chapter provides background on the context of legal defense in
Michigan and describes the development and status of the reform process. Chapter 3 discusses
the theoretical foundation used to guide this study—specifically, implementation science and
role theory. The methodology utilized is discussed in Chapter 4 and the findings are assessed in
Chapter 5. Chapter 6 covers the discussion and Chapter 7 provides the conclusion, along with
limitations and implications for future research.

8

CHAPTER 2: LITERATURE REVIEW
Current State of Indigent Defense
In order for the defense to function, it must be adequately funded and there must be parity
between the defense and prosecution in terms of resources, experience, and quality of legal
counsel. Unfortunately, this is rare across jurisdictions nationwide (Benner, 1974; Everett, 2004;
Gershowitz, 2007; NLADA, 2008; Wallace, 2000).
The quality of indigent defense varies across the United States, but there is a consensus
that underfunding of indigent defense is a chronic issue, leading to disparities in case outcomes
and potentially violating the right to counsel guaranteed by the Sixth Amendment (Chiang, 2010;
Chin, 2011; Chen, 1996; Citron, 1991; Drinan, 2010; Lemos, 2000; Pruitt & Colgan, 2010).
Despite landmark rulings that solidify the right to legal counsel for indigent criminal defendants,
many indigent defense systems fall short in implementing basic legal counsel (Anderson, 2011;
Lucas, 2013; Uphoff, 2010). Many public defenders are so overburdened that it is not possible
for them to effectively represent their clients (Chin, 2011; Cornwell, 2015; Drinan, 2009; 2010;
Green, 2003; Logan, 2010). To address these issues, Michigan passed a statute in 2013, which
created the Michigan Indigent Defense Commission (MIDC). This statute requires the MIDC to
“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…” MCL 780.991(2).
Currently, judges and court administrators are in the process of implementing and preparing to
implement minimum standards in Michigan courts.
Indigent defense research has explored disparities across state systems (Brown, 2010;
Frederique, Joseph, & Hild, 2014; Laurin, 2015), but there is limited research regarding chief

9

judges’ and court administrators’ insights into these issues. There is a clear need for more
research in order to improve the quality of indigent defense (Siegel, 2015; Worden, Davies, &
Brown, 2010). The National Legal Aid and Defender Association’s 2008 report on indigent
defense systems in Michigan, entitled A Race to the Bottom—Speed and Savings Over Due
Process: A Constitutional Crisis, discussed the need for more research on current indigent
defense systems so that evidence-based policies and procedures can be created. The current
reform in Michigan provides a unique opportunity to study judicial perspectives on indigent
defense as well as the process of implementing reform for indigent defense systems across the
state. Michigan’s 83 counties have a variety of indigent defense systems, and some counties
have more than one system, further complicating how indigent defense is provided (NLADA,
2008). As a result, the diversity of Michigan’s counties (both in the systems that are provided
and the variety of urban and rural courts) and the context of the research (the current
implementation of reforms) provide an excellent opportunity for an in-depth research project.
Understanding how chief judges and court administrators perceive their role in creating
compliance plans and implementing the minimum standards in their counties can contribute to
the understanding of role theory in reform implementation.
Many of the issues experienced across the country and in Michigan’s counties related to
indigent defense are a result of a lack of funding (Drinan, 2009; Gershowitz, 2007; Lucas, 2013;
NLADA, 2008; Siegel, 2015). Funding is a major factor in a party’s success in court. Marc
Galanter’s seminal work, Why the Haves Come Out Ahead: Speculations on the Limits of Legal
Change, outlines the major disadvantages that underfunded parties face in the courtroom.
Galanter realistically portrays the differences between actors in terms of wealth and power
(Galanter, 1974). He systematically compares the advantages of wealthier individuals and

10

organizations to average individuals that are not able to afford high quality attorneys (Galanter,
1974). Although these statements are obvious and taken for granted today, his research helped
pave the way for testing disparities in outcome in courtrooms, especially as they relate to
resource inequality. Many of the indigent defense systems in Michigan are underfunded, and an
in-depth report from 2008 showed that all ten counties that were sampled in Michigan of varying
population and demographic characteristics, suffered from constitutional violations (NLADA,
2008). While prosecutors’ offices have also received attention for the lack of funding and
resources they are subject to, prosecutors are generally better-funded than indigent defense
systems in the state (NLADA, 2008). Underfunding indigent defense systems across the state
puts indigent defendants at a distinct disadvantage. Since the party with the greater resources is
more likely to win in court (Galanter, 1974), indigent defendants are often at a disadvantage in
court and do not have the same opportunities for defense as their wealthier counterparts that are
able to afford private legal defense. The new reform is meant to address this disparity in
funding, and as chief judges and court administrators are in charge of implementing the new
reform, it is important to understand how they conceive of their role in doing so.
Significance of Defense
The defense protects individuals’ constitutional rights through a variety of functions. The
defense helps ensure fair sentencing, pre-trial release, guards against self-incrimination,
wrongful conviction, and helps to ensure a fair trial with a fair process of jury selection.
Prosecutors exercise a large amount of discretion and power in their role (Albonetti, 1986;
Feeley, 1983; Jacoby, 1980; Kress, 1976; Starr & Rehavi, 2013; Worrall & Nugent-Borakove,
2008). Because they choose which defendants to prosecute and which charges to pursue,
prosecutors’ discretionary decision-making power can impact lives and communities in a unique

11

and serious manner (Starr & Rehavi, 2013). Although prosecutors’ offices also suffer from
underfunding, their access to more resources than their indigent defense legal counsel
counterparts creates a serious ethical issue in the criminal justice system. In an adversarial
system, defense attorneys play a very important role. Not only do they provide a defense for
accused individuals as is constitutionally mandated, but they act as a counterweight and a check
on the prosecution and law enforcement investigations (Hessick & Saujani, 2002). State interests
are harmed by wrongful convictions, as they undermine the legitimacy of the system and punish
innocent individuals. Additionally, as innocent people are wrongfully convicted and punished,
guilty individuals that were not apprehended by law enforcement are free to continue to
victimize others. The cost of prosecuting an innocent person reverberates throughout a
community and undermines the legitimacy of the criminal justice system. No matter how
experienced or ethical law enforcement, investigators, and prosecutors can be, they are still prone
to mistakes and cognitive biases (Kassin, Dror, & Kukucka, 2013; Nickerson, 1998; NLADA,
2008). Therefore, it is particularly important for the defense to be as well-funded, trained, and
have access to an equal amount of resources as the prosecution. When the prosecution is much
better funded than the defense, indigent defendants are further disadvantaged, and the defense is
unable to fulfill the important role of check on the prosecution and law enforcement, as well as
the many other important functions that ensure the protection of defendants’ rights.
The NLADA’s investigation revealed that while there are constitutional violations across
the state with respect to indigent defense, there are also egregious ethical violations. For
example, in Ottawa County, defense attorneys rely on the prosecution to provide more
information for the purposes of investigating their client. “Perhaps the most shocking revelation,
acknowledged by both defense attorneys and the prosecuting attorney, was that when additional

12

investigation is needed, the common practice is for the defense attorneys to call the prosecuting
attorney and ask him to have law enforcement do it or in some cases they will call the sheriff
directly” (NLADA, 2008, p. 68). When the defense relies on the prosecution to gather more
information instead of conducting an independent investigation, there is a major conflict of
interest and there is no check on the prosecution. Regardless of the ethical integrity and training
of local law enforcement, there is no guarantee that the correct person was arrested for a crime.
It is the defense’s responsibility to conduct independent investigations in order to build a case.
Because of this common practice in Ottawa County, the defense cannot fulfill its role.
Models of Indigent Defense Delivery
There are three main systems for delivering indigent defense: (1) the assigned counsel
model, (2) the contract model, and (3) public defender programs (Davies & Worden, 2009;
Frederique, Joseph, & Hild, 2014; Majd & Puritz, 2009; Spangenberg & Beeman, 1995).
Assigned Counsel System
The assigned counsel model consists of private attorneys that are assigned to indigent
clients, either through a specific system or “an ad hoc basis” (Spangenberg & Beeman, 1995, p.
32). The “ad hoc program” relies on the court to appoint a defense attorney, without established
criteria or a systematic method. In this system, lawyers are sometimes assigned based on which
attorney is present in court during arraignment (Spangenberg & Beeman, 1995). They are paid
by the hour or are paid a flat fee in each case. When cases require expert witnesses or
independent investigations, attorneys need to petition the courts to secure the extra funding.
Attorneys are discouraged from petitioning the court for extra funding in many cases, especially
since this can slow down the processing of cases and necessarily requires more funding, which
can strain relationships between the judges that assign counsel and the attorneys that hope to be

13

assigned to cases (Siegel, 2015). The ad hoc program can create conflicts of interest as
appointments are made by judges, requiring attorneys to maintain positive relationships with
judges in order to continue to be assigned to cases (Majd & Puritz, 2009). Additionally, the lack
of standards and minimum qualification criteria translates to attorneys that are inexperienced or
unable to find work elsewhere being assigned to indigent defendants (Spangenberg & Beeman,
1995).
Instead of ad hoc programs for assigned counsel, some jurisdictions use a more organized
approach, known as the coordinated assigned counsel program. This type of program is defined
by the inclusion of administrative oversight (Spangenberg & Beeman, 1995). The advantage of
this type of program is that it requires standards in order for attorneys to participate in indigent
defense. Under this system, attorneys are systematically assigned and rotated, and the specifics
of a case are taken into consideration when counsel is appointed (Spangenberg & Beeman,
1995). Unfortunately, funding for independent investigations and expert witnesses must still be
petitioned for, and although there is more organization in this system, it does not eliminate issues
of lack of judicial independence (Spangenberg & Beeman, 1995).
Contract System
The second type of system is defined by contracts between attorneys and jurisdictions.
Contracts can state that “some or all of the indigent cases in the jurisdiction” will be handled by
the attorneys or organizations that have signed the contract (Spangenberg & Beeman, 1995).
Contract programs are diverse, but can usually be categorized as either fixed-price contracts or
fixed-fee-per-case contracts (Spangenberg & Beeman, 1995). In fixed-price contracts, a flat fee
is provided for handling all of the cases throughout the duration of the contract to the lawyers,
law firm, or other organization such as a bar association. This single fee covers representation

14

for indigent defendants, including any supplementary investigations or expert witnesses that are
needed for any of the cases. Unfortunately, the contract is not adjusted if particularly complex
cases arise or if the number of cases increases dramatically. This incentivizes processing cases
as quickly as possible for as cheaply as possible, leaving indigent defendants at a major
disadvantage against better-funded prosecutors (Majd & Puritz, 2009). Additionally, it also
incentivizes hiring the lowest bidder, without consideration for quality of service. There have
been many criticisms of fixed-price contracts (Lemos, 2000; Majd & Puritz, 2009; NLADA,
2008). In State v. Smith in 19842, Arizona’s Supreme Court ruled that the fixed-price contract
system is unconstitutional due to the lack of consideration of time spent per case, the lack of
funding for expert and support services, the lack of standard qualifications due to hiring the
lowest bidder, and a lack of consideration for the diversity of cases.
An alternative to fixed-price contracts is the fixed-fee-per-case contract model. In this
model, the contract is limited to a specific number of cases, and each case is paid for by a fixed
fee. Additionally, the funding needed for supplementary investigative services, expert witnesses,
and support staff is built into the contract (Spangenberg & Beeman, 1995). After the specific
number of cases in the contract has been completed, the contract can be extended or
renegotiated. Although this system incentivizes higher quality representation than the fixedprice contract system, it is much rarer. Jurisdictions typically opt for the fixed-price contract
system in order to limit the cost of providing indigent defense (Spangenberg & Beeman, 1995).
Unfortunately, those who suffer most from these cost-cutting measures are in a powerless
position to demand higher quality representation. Not only do indigent clients suffer, but
jurisdictions also open themselves up to scrutiny and costly litigation that can result “from claims
2

See State v. Smith, 140 Ariz. 355 (1984)

15

of ineffective assistance of counsel” (Spangenberg & Beeman, 1995, p. 35). One study found
that counsel provided through contracts processes cases more quickly (Houlden & Balkin, 1985),
which creates a risk that indigent defendants are receiving low-quality legal representation. The
contract system remains popular due to the certainty of cost it provides, allowing jurisdictions to
manage their budgets more easily (Spangenberg & Beeman, 1995). The assigned counsel system
cannot provide certainty in terms of cost, making the contract system more attractive to counties.
Although contract programs incentivize rapid case processing and discourage attorneys from
spending more time on complex cases, they can be improved by requiring attorneys to be welltrained and experienced, as well as providing funding within the contract to cover support
services. Regardless of the model chosen, it is important to have administrative oversight over
any system, but this is often lacking in contract models and assigned counsel models
(Spangenberg & Beeman, 1995).
Public Defender System
The third type of system is the public defender program, which is defined by an
organization that deals strictly with indigent defense and maintains support personnel (Felice,
2000; Spangenberg & Beeman, 1995). This organization can be public or a private nonprofit
organization that maintains a staff and represents indigent defendants in their jurisdiction.
Permanently employing attorneys in order to represent indigent clients sets this system apart
from the assigned counsel and contract systems (Spangenberg & Beeman, 1995). Jurisdictions
with a public defender system must also have another system (such as a contract program or
assigned counsel program) in place in order to manage cases in which there is a conflict of
interest in cases with multiple defendants or other sources of conflicts of interest (Spangenberg
& Beeman, 1995).

16

Public defender programs exist in various jurisdictions, but are more common in
jurisdictions that have over 750,000 residents (Spangenberg & Beeman, 1995). There are
obvious advantages to the public defender model as it necessitates hiring a staff dedicated to
handling criminal cases. This helps ensure higher quality representation and access to support
staff. Unfortunately, this system is also frequently underfunded, leaving high caseloads that
impede the likelihood of effective legal counsel (Drinan, 2010). This system is arguably better
than the assigned counsel and contract system, but lack of funding can create issues that are
experienced in the other two systems as well—including time and resource inadequacies that
incentivize quick case processing (Spangenberg & Beeman, 1995).
Many states utilize a combination of these models, and some states include counties that
use a combination of these models. Michigan is an example of such a state. Since counties are
responsible for providing indigent defense in Michigan, all three types of systems can be seen
across counties, with some counties employing multiple models. Funding issues largely drive
the decision to implement one type or a combination of the systems in a county (Drinan, 2012;
Spangenberg & Beeman, 1995). Even as reforms are implemented, there are great challenges to
providing indigent defense. The cost of providing representation continues to increase, and
budgets are rarely equipped to meet the demand for services (Spangenberg & Beeman, 1995).
Additionally, policy changes can lead to an increase in arrests and a subsequent influx of
indigent defendants (Spangenberg & Beeman, 1995).
In contract systems and assigned counsel systems, there is not an effective check to make
sure that attorneys are not overburdened. In fact, lawyers are incentivized to take on as many
cases as possible in order to increase their income, despite the obvious time and resource
limitations. In the public defender system, there is a clear advantage in which attorneys are able

17

to focus all of their efforts on criminal defense, although issues of overburdened caseloads can
also occur when such systems are overworked and underfunded (Spangenberg & Beeman, 1995;
Worden et al., 2010).
Diversity of Michigan’s Counties
Michigan was ranked 44th out of 50 states in terms of per capita spending for indigent
defense (NLADA, 2008). This low ranking is further complicated by the lack of standardization
across counties. A lack of a statewide system and the diversity in terms of demographics and
population size of Michigan’s 83 counties results in indigent defense systems that vary greatly
from county to county. Until the Michigan Indigent Defense Commission created minimum
standards, there was no oversight at the state level and no minimum standards to ensure even
basic quality control. Each county chose to evaluate attorneys at will, sometimes transferring the
responsibility of quality control to judges, relying solely on judges’ subjective opinions.
Michigan’s urban and rural counties encounter varying criminal defendant populations and
budgetary issues. These differences can impact the manner in which indigent defense models are
implemented. Rural counties particularly must navigate the issues of familiarity between court
actors that can leave defendants as outsiders (Eisenstein, Flemming, & Nardulli, 1988). Because
Michigan’s counties are burdened with financing indigent defense (alternatively, some states opt
for statewide funding or a combination of statewide and local funding), the variation in
socioeconomic status of residents across counties further complicates indigent defense delivery
systems and leaves the most financially vulnerable counties least able to provide criminal
indigent defendants with legal counsel (NLADA, 2008).

18

Violations of the Constitution and the American Bar Association’s Principles
Although in 1857 Michigan was among the first states to provide indigent defense, the
responsibility was given to counties, without oversight or guidance from the state (NLADA,
2008). Until the MIDC was created, no uniformity or standardization was available across the
state, leading to constitutional violations. A 2008 report from the National Legal Aid and
Defender Association chronicled the major issues across ten counties in Michigan. The lengthy
investigation resulted in findings of constitutional violations across the state, and all of the
counties sampled were deemed to provide constitutionally inadequate legal defense services
(NLADA, 2008). This extensive study spanned a full year and covered ten counties that were
deemed representative of the state. The study focused on Alpena, Bay, Chippewa, Grand
Traverse, Jackson, Marquette, Oakland, Ottawa, Shiawassee, and Wayne County.
The report found that egregious constitutional violations occur across Michigan’s
indigent defense systems. Some of these violations include major conflicts of interest in which
judges are able to choose the defense attorneys, a lack of confidential meetings, unqualified
attorneys representing defendants, a lack of preparation from legal counsel, major issues in
inadequate funding, and the processing of cases for the sake of efficiency over appropriate
representation (NLADA, 2008).
Quick Disposal of Cases
In some counties, the need to quickly dispose of cases is the highest priority (NLADA,
2008). Many counties rely on the assigned counsel model, the flat-fee contract model, or a
mixture of both. Both models encourage disposing of cases as quickly as possible since
spending more time on a case decreases the amount of money defense attorneys are able to make
(Anderson, 2011). The models for providing indigent defense sometimes vary within counties

19

depending on the court. Some courts adopt hourly rates, while others choose fee schedules. A
fee schedule determines the monetary amount rewarded for completing a specific task, without
consideration for the time it takes to do so. Both approaches encourage attorneys to spend as
little time as possible on a criminal case. Fee schedules and flat-fee contracts are used by
counties that experience burdensome caseloads and are seeking to decrease the costs of
providing indigent defense. Unfortunately, counties that rely heavily on contracts generally
choose the lowest bidder without taking into account any other factors (NLADA, 2008).
Lack of Accountability and Uniform Review Process
In violation of the American Bar Association’s tenth principle of a public defense
delivery system, there is a lack of accountability for defense attorneys that work in indigent
defense systems across Michigan. Counties do not regularly evaluate attorneys to ensure quality
and competency. Rather, individual judges can intervene and remove attorneys that are not
performing up to their standards, but this is a highly subjective process that serves to remove
only attorneys that have come to the attention of judges. There is not a uniform mechanism in
place to ensure that attorneys serving indigent clients are competent, independent, or experienced
(NLADA, 2008).
Lack of Judicial Independence
In addition to a lack of accountability and uniform review process, judges have an
enormous amount of power over defense attorneys that work under the assigned counsel model
or the contract model. Because judges assign attorneys to indigent clients in the assigned
counsel model, attorneys can feel pressure to behave in a manner that will please judges (Majd &
Puritz, 2009). The same is true for attorneys that work under a contract system in some counties
in which judges have an influence over deciding who is awarded a contract to provide indigent

20

legal defense. Upsetting or annoying a judge in any manner leaves the defense attorney
vulnerable to losing a contract or not being assigned to clients by that judge in the future. As a
result, the relationship with the judge necessarily takes priority over the relationship with the
client. Unfortunately, in assigned counsel models, attorneys must petition the court in order to
secure funding for supplementary investigations, expert witnesses, or support staff (Majd &
Puritz, 2009). This is costly and slows down the processing of cases, leaving attorneys in a
vulnerable position with judges that are interested in processing cases as quickly as possible.
There is no incentive to petition the court for extra resources. In fact, the opposite is true.
Attorneys have an incentive to keep the judge satisfied with their performance, and slowing
down case processing by requesting costly services works against defense attorneys. Several
investigations found numerous cases across the state in which attorneys made it clear that they
never petitioned the court for extra resources to advocate for their client (NLADA, 2008; Siegel,
2015).
Lack of Parity Between Defense and Prosecution
The American Bar Association’s eighth principle regarding parity between public
defenders and prosecutors is routinely violated across the state (NLADA, 2008). Chief Justice
Warren Burger discussed the importance of parity of resources between the defense and the
prosecution.3 Most counties are funding the prosecutor’s office more generously than the
indigent defense system (Gershowitz, 2007). Local law enforcement receives funding from state
and federal sources more frequently and in a greater amount than indigent defense systems
(NLADA, 2008). This creates a disadvantage for the defense before cases are even reviewed.

3

See Argersinger v. Hamlin, 407 US 25 (1972)

21

A study on post-conviction public defense highlighted the experiences of criminal
defendants, attorneys, and judges with public defense (Siegel, 2015). The appellate level of
indigent defense receives state funding, but Siegel’s work highlights the need for more research
as well as more resources in order to increase the efficacy of indigent defense at the appellate
level as well as the trial level. Evidence-based research for indigent defense systems is rare, in
part, due to the lack of data collection across the systems. There is a need for greater data
collection in order to increase research and insight into the systems (Siegel, 2015).
Creation of the Michigan Indigent Defense Commission to Address Issues
Michigan is currently undergoing indigent defense reform in accordance with the state’s
new legislation. A 2013 statute created the Michigan Indigent Defense Commission (MIDC).
MCL 780.991(2) requires the MIDC to “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…” The MIDC is a result of Executive Order 2011-12, which was issued by
Governor Snyder in October 2011. It created the Indigent Defense Advisory Commission. The
commission analyzed and recommended changes for Michigan’s legal system. The
commission’s findings provided a foundation for the legislation that created the MIDC. The
MIDC’s role includes developing and providing oversight for the minimum standards of indigent
defense as stated in the United States Constitution, as well as the state constitution of 1963, and
the Michigan Indigent Defense Commission Act. The MIDC gathers data and creates standards
in order to improve legal counsel to indigent defendants (MIDC, n.d.).
The minimum standards are designed to address the myriad of issues in indigent defense
systems statewide. The first set of minimum standards was submitted to the Michigan Supreme

22

Court for approval in January 2016. These minimum standards cover major issues related to
indigent defense that have plagued the state, and include requirements for training and the
continuing education of defense attorneys, having legal counsel during the first appearance in
court and throughout critical stages, initial client interviews, and access to supplementary
investigation services and expert witnesses (MIDC, 2016). The Court has six months to review
and approve the standards. After approval, per the MIDC Act, every local indigent defense
system must provide a plan that details how the standards will be implemented within that
system.
Discretion, Court Culture, and Implementing Reform
Prior attempts to implement reform in the court setting and other complex organizations
have experienced many issues, and multiple cases indicate that a lack of a comprehensive
understanding of the problem contributes to this failure (Adler, 2007; DeLeon & DeLeon, 2002;
Hill, 2003). In order to address these failures, the perspectives of key stakeholders—in this case
chief judges and court administrators—must be taken into account. In order to study the
implementation of the new minimum standards for criminal indigent defense in Michigan, it is
important to understand the perspectives and experiences of the chief judges and the court
administrators that will be in charge of implementation in their jurisdictions.
Disparities across the criminal justice system can be attributed to discretionary decisionmaking on the part of criminal justice actors (Albonetti, 1991; Anderson, 2012; Feeley, 1973;
Leiber, Peck, & Rodriguez, 2013; Lipsky, 1980; Maynard-Moody & Musheno, 2003; McCleary,
1978). This is especially true in the judiciary, where judges have a lot of power in interpreting
statutes and in the administration of justice in the courts. Studies of the judiciary frequently
focus on decision-making at the federal level. Studies of the United States Supreme Court are

23

most common (Bailey & Maltzman, 2011; Baum 1997; 2006; 2009; Epstein & Knight, 1997;
Epstein & Kobylka, 1992; Jacobs & Smith, 2011; Maltzman, Spriggs, & Wahlbeck, 2000; Segal
& Spaeth 1993; 2002). State-level studies are infrequently published. A study that focuses on
state-level judges, and especially one that focuses on role theory and reform implementation,
provides a unique opportunity to contribute to the literature. The quality of procedural justice
depends highly on the court actors that are involved in the process. Without understanding chief
judges’ and court administrators’ perspectives, researchers are unable to fully explain the
discretionary decision-making process in the courts. Additionally, because most cases are never
appealed, the decisions made in lower courts impact society greatly (Segal & Spaeth, 1993).
This makes it particularly important to study and understand judicial perspectives in lower
courts.
Because criminal justice cases are complex and outcomes are greatly affected by judicial
discretionary decision-making, it is particularly important to gather and analyze data on the
manner in which judicial perspectives influence the current indigent defense systems across
Michigan’s counties and the manner in which reform will be implemented by these actors.

24

CHAPTER 3: THEORETICAL FRAMEWORK
Implementation Science
Implementing reform in any setting is challenging, and understanding the context in
which implementation occurs is important (Fixsen, Blase, Timbers, & Wolf, 2001; Fixsen,
Naoom, Blase, Friedman, & Wallace, 2005; Leschied & Cunningham, 2002). Previous research
has indicated that reforms can fail for a variety of reasons, including a lack of a comprehensive
understanding of the context as well as not considering the perspectives of key stakeholders
involved in the reform (Adler, 2007; Andrews & Bonta, 2010; Berman, 1978; Casper &
Brereton, 1984; DeLeon & DeLeon, 2002; Feeley, 1983; Harland & Harris, 1987; Hill, 2003;
McGarrell, Rivera, & Patton, 1990). Feeley captures this serious concern:
Scholars are finding that many innovative programs fail in their implementation. This
book suggests that the picture is bleaker: the causes of failure are found at every stage of
planned change. Often, failure is rooted in conception, in a fundamental
misunderstanding of the nature of the problem, the dynamics of the system, the nature of
the change process, and attention to detail at the service delivery level. (Feeley, 1983, p.
25)
Understanding context is crucial, and the current study examines the perspectives of key
stakeholders—chief judges and court administrators. Understanding their perspectives on the
current state of criminal indigent defense, the new reform, and their concerns about the new
reform can contribute to the literature on reform implementation in the courts. As reform in
complex organizations such as the courts is difficult to successfully implement, there is a need
for more research on the views of the key stakeholders that are charged with reform
implementation.

25

The literature on implementation science research indicates that understanding the
strengths and weaknesses of the organization prior to reform is paramount (Fixsen, Naoom,
Blase, Friedman, & Wallace, 2005). If reform is top-down—as it is with state minimum
standards that counties are charged with implementing—those in charge of making that reform
happen in their organizations are too often not included in the process. Ensuring that key
stakeholders within the organization are on board with the need for reform may sound simple,
but reform implementation fails when the organization’s leaders and stakeholders are not
supportive (Fixsen, Naoom, Blase, Friedman, & Wallace, 2005; Petersilia, 1990), and ensuring
support from stakeholders and implementers has been linked to successful reform
implementation (Ramarapu, Mehra, & Frolick, 1995; Salanova, Cifre, & Martin, 2004; Small &
Yasin, 2000).
To better understand the critical role that stakeholders play in reform implementation
across the courts in Michigan, the theoretical framework provided by implementation science
and role theory guided this study. Implementation facilitators include staff attitudes,
understanding on the part of stakeholders, and support of the reform. Barriers to implementation
include lack of funding, knowledge, belief in usefulness, motivation, and managerial support
(Fixsen, Naoom, Blase, Friedman, & Wallace, 2005). Key stakeholders influence these areas—
so their support and understanding in shaping the reform and implementing it is paramount. The
National Implementation Research Network comprehensively investigates implementation
science and the barriers and facilitators to successful implementation. Innovations are not
implemented successfully due to multiple barriers—including a lack of support at multiple
levels—such as the practice level, organization level, and system level (Aladjem & Borman,
2006; Joyce & Showers, 2002; Nord & Tucker, 1987; Schofield, Bourke, & Leonard, 2004).

26

Although this specific research is from education reform, it is still relevant to criminal justice
reform as both courts and schools are organizations that have multiple stakeholders and multiple
decision-points in terms of implementing reform. In the context of the courts, the judges and
administrators are critical stakeholders at the practice, organization, and system levels.
Previous research on implementation indicates that in order for reform to be successfully
implemented, the details of the reform must be clear and specific (Bauman, Stein, & Ireys, 1991;
Dale, Baker, & Racine, 2002; Winter & Szulanski, 2001). Stakeholders and implementers must
understand the logistics of the reform and what their role will be in implementation. Recognizing
this, the current study taps into the insights of chief judges and administrators in order to
understand not only their perceptions, but how they conceive of their role in this process.
Role Theory
The current study examines how chief judges and court administrators define their roles
when they are charged with implementing reform involving administration and recordkeeping,
and how the context of reform can contribute to its success or failure in implementation. The
experiences and perspectives of the chief judges and court administrators charged with reform
implementation can provide valuable insight and contribute to the body of knowledge of
implementation science. Role Theory provides a useful framework from which to understand
chief judges’ and court administrators’ perceptions related to reform implementation and the part
they play in implementing the new minimum standards. “The basic premise of role theory is that
individuals act differently within their institutional context than they do when acting in relative
isolation…[t]hus, a judicial actor’s role is a pattern of behavior that is determined by his
expectations, the normative expectations that others have for him, and other factors which inform
the actor’s conception of his function in the judicial system” (Smith, 1990). In order to better

27

understand reform implementation in indigent defense systems across Michigan’s counties, it is
imperative to understand how the individuals charged with implementing this reform conceive of
their roles in relation to the new minimum standards. Surveying chief judges and court
administrators in circuit and district courts about their current perceptions of indigent defense,
their perceptions of the new reform, and their perceptions about their role in implementing this
new reform can contribute to the literature on role theory and reform implementation in
organizations.
Purpose of the Study
The purpose of the study was to explore the perspectives of chief judges and court
administrators as they relate to the current state of indigent defense, the new reform, and their
role in the implementation of the new reform in order to contribute to the knowledge in the field
of implementation science. Much of the literature that focuses on judicial perspectives explores
the United States Supreme Court (Bailey & Maltzman, 2011; Baum 1997; 2006; 2009; Epstein &
Knight, 1997; Epstein & Kobylka, 1992; Jacobs & Smith, 2011; Maltzman, Spriggs, &
Wahlbeck, 2000; Segal & Spaeth 1993; 2002). The research related to state-level judges is
largely missing. Additionally, the research on indigent defense focuses on the experiences of
defense attorneys, clients, and the models of indigent defense delivery. The research on indigent
defense and chief judges’ and court administrators’ involvement is also largely missing,
especially in the State of Michigan.
Siegel (2015) expanded the literature on indigent defense through a report on indigent
defense at the appellate level in Michigan, which included qualitative interviews with judges.
However, indigent defense trial level experiences have not been explored. Additionally, this
unique time in Michigan’s history as it implements state-wide reform was not yet explored. As

28

indigent defense undergoes systematic changes across the State of Michigan, the challenges and
concerns of judges and court administrators can provide insight into making organizational
changes at the county level. This insight can be used to further explore and strengthen the
implementation of minimum standards across Michigan, as well as provide valuable information
to other states that are considering, or in the process of, reforming their indigent defense systems.
In addition to these practical insights that can potentially contribute to the State of Michigan, the
findings from this study can help contribute to the understanding of the role of stakeholders in
reform implementation. The literature on implementation science is growing, and this study can
help illuminate the role of stakeholders’ perspectives in implementation across complex
organizations, especially reform that is engineered at the state level, yet implemented by county
stakeholders. This study was exploratory and it capitalized on the unique situation in Michigan
as it is currently undergoing reforms in indigent defense.

29

CHAPTER 4: METHODOLOGY
Chief Judges and Court Administrators
Chief judges and court administrators were surveyed on the current state of indigent
defense and the implementation of the new minimum standards. Chief judges and court
administrators have leadership and administrative responsibilities that affect the way in which
indigent defense systems operate in their courtroom. Consequently, both groups were surveyed.
Additionally, response rates among judges have been historically low. In order to increase the
response rate and have a more comprehensive picture of reform implementation, chief judges
and court administrators were targeted to respond to the survey. The addition of court
administrators provided a more holistic understanding of indigent defense systems across
Michigan. After standards are approved, courts have 180 days to implement the new changes
and provide evidence to the MIDC that they are compliant with the standards. This work will
likely be the responsibility of court administrators in many counties, so their insight and
perceptions of the new reform represented an untapped and very valuable resource for the
understanding of reform implementation in the indigent defense systems across Michigan’s
counties.
Foundational Interviews
As part of the groundwork for designing the current study, three subject-area experts in
Michigan’s criminal indigent defense systems were interviewed. An employee from the MIDC
who was instrumental in research and in creating the minimum standards for criminal indigent
defense was interviewed in April 2016. Two individuals from the American Bar Association
were also interviewed. In addition to these experts, a phone interview with two researchers from
American University regarding the practical challenges of researching indigent defense was held

30

in April 2016 so their insight on creating effective survey instruments in this area could be
applied to create a comprehensive survey instrument. The information gleaned from these
interviews provided a detailed background of the current state of Michigan’s indigent defense
systems across the state. In addition to discussing the current state of indigent defense, the
interviews also delved into the creation of the MIDC, the politics surrounding different models
of criminal indigent defense delivery, the weaknesses of each model, and the issues that the new
minimum standards are intended to address. The interviews were very useful in providing an
understanding of the context in which the reform is currently being implemented. They were
also helpful in providing an understanding of the way in which discretionary decision-making by
chief judges and court administrators impacted the way indigent defense was provided, and the
potential manner in which it could influence reform implementation.
Research Questions

1). How do chief judges perceive the current state of indigent defense in their jurisdiction?
2). How do court administrators perceive the current state of indigent defense in their
jurisdiction?
3). How do chief judges perceive the new reform?
4). How do court administrators perceive the new reform?
5). How do chief judges perceive their role in implementing the new reform?
6). How do court administrators perceive their role in implementing the new reform?

31

The research questions focused on chief judges’ and court administrators’ experiences
and perceptions of the current state of indigent defense, the new reform, and their role in
implementing the new reform. The first and second research questions were explored through a
section in the survey that queries chief judges and court administrators about the current state of
indigent defense in their jurisdiction. This brought insight into chief judges’ and court
administrators’ opinions of current issues and the process through which indigent defendants
receive legal counsel. The third and fourth research questions were explored through a section in
the survey that queried chief judges and court administrators about their familiarity with indigent
defense reforms in Michigan, how they perceive the reforms will impact their jurisdiction, and
their overall perceptions of these reforms. The fifth and sixth research questions focused on how
chief judges and court administrators perceive their role in the implementation of the new
minimum standards. See Appendix A for the survey instrument.
The survey was distributed electronically to chief judges and court administrators in
district and circuit courts in the State of Michigan. District courts in Michigan are limited
jurisdiction courts and circuit courts are general jurisdiction courts. The survey consisted of both
closed-ended questions and open-ended questions. Both Likert Scale questions and open-ended
questions were chosen for the survey to capture as comprehensive picture of the response to
indigent reform implementation as possible. Open-ended questions were chosen in some
sections so that survey respondents were able to provide new information and allow new themes
to emerge. Chief judges and court administrators in circuit and district courts in all 83 counties
in Michigan received an invitation to participate in the survey.

32

Sampling and Recruitment
The MIDC employee that participated in the foundational interview was sent a copy of
the survey instrument so that it could be reviewed and checked for sensitive or controversial
language. He has worked on the new minimum standards and is familiar with the judicial
community in Michigan. In addition to his insights, Michigan’s State Court Administrator
reviewed the survey instrument. Based on the feedback, the survey was adjusted, and the new
version was distributed. The State Court Administrator sponsored the survey. He briefly wrote
about the research project and forwarded the description of the survey, enclosure letter, and
SurveyMonkey link to all of the chief judges and top court administrators in every Michigan
county.
Chief judges and court administrators in both circuit and district courts in all 83 counties
were sent a copy of the survey through SurveyMonkey along with a cover letter explaining the
research project on March 8, 2017. See Appendix B for a copy of the cover letter. This survey
was exploratory and the goal was to collect as many surveys from chief judges and court
administrators as possible. Percentages of answer categories across closed-ended questions
indicated how respondents relate in terms of viewpoints (and Kruskal-Wallis H-test results
indicated whether differences are statistically significant), while open-ended questions were
coded according to themes that emerged.
Analysis Plan
A survey with closed-ended and open-ended questions was chosen because closed-ended
questions allow for a direct comparison of data while open-ended questions provide an
opportunity to find new themes and information that would not otherwise be uncovered (Shadish,
Cook, & Campbell, 2002). Frequencies and percentages were used to explore the characteristics

33

of respondents. Additionally, respondents’ perceptions of defense systems were compared by
the position held, type of court, county type, and delivery systems for providing indigent defense.
The comparison was conducted using the Kruskal-Wallis H-test. The Kruskal-Wallis H-test is
used for examining the bivariate relationship between categorical independent variables and
ordinal dependent variables—such as Likert scale questions (Kruskal & Wallis, 1952). The
Kruskal-Wallis H-test works by creating a sum of the ranks in each category of the independent
variable. For example, in one of the Likert scale questions, respondents were provided the
following statement: “Indigent defense reform was necessary in Michigan.” Respondents had
five response options: strongly disagree, disagree, neutral, agree, or strongly agree. The results
of the Kruskal-Wallis H-test used one of the independent variables—the position held by the
respondents—to create a sum for the responses for each position. The response options were
assigned a numerical value and summed, allowing a comparison across the categories (chief
judge, court administrator, and other). Due to the small sample size, these five response options
were collapsed into three options: disagree, neutral, and agree. This coding strategy was used for
all of the following Kruskal-Wallis H tests.
In addition to the Kruskal-Wallis H-test, a chi-square test was performed as a
supplementary analysis, and the findings were consistent. However, considering that the
dependent variables (Likert scale questions) are ordinal as opposed to categorical (and chi-square
is more appropriate for categorical variables), the Kruskal-Wallis H-test is the more appropriate
test for this data set. The Kruskal-Wallis H-test still produces chi-square statistics because the
Kruskal-Wallis H-test statistics have a similar chi-square distribution (Kruskal & Wallis, 1952).
Using the Kruskal-Wallis H-test, each of the Likert scale questions were subdivided and
analyzed based on whether the respondent was a chief judge or court administrator, whether they

34

were from a circuit or district court, whether they were from a rural or urban county, and the type
of indigent defense delivery system used in their jurisdiction.
The open-ended survey questions provided respondents an opportunity to introduce new
information that is not already covered in the closed-ended questions, and the responses from the
open-ended questions were coded. The themes that emerged are described in the following
chapter.

35

CHAPTER 5: FINDINGS
Characteristics of Respondents
A total of 62 individuals responded to the survey, with a relatively even split between
chief judges and court administrators (41.9% held the position of chief judge, 50.0% held the
position of court administrator, and 8.1% held another position—such as circuit judge or juvenile
court administrator/family court referee). The overall response rate was 19.5% as 57
respondents were either chief judges or court administrators out of a total of 292 chief judges and
court administrators (five respondents held other positions). The response rate for chief judges
was 22.0% as 26 chief judges out of a total of 118 responded, and the response rate for court
administrators was 17.8% as 31 out of 174 court administrators responded. Respondents held
positions across district courts, circuit courts, courts that were classified as both district and
circuit, and other types of courts (such as probate). For a breakdown of positions held across the
different court types, please see Table 1a below.

36

Table 1a. Current Position of Respondents (by court type)
Response
Categories

District
% (N)

Circuit
% (N)

District and
Circuit %
(N)

Other
% (N)

Total
% (N)

Chief Judge

56.3% (18)

18.8% (3)

16.7% (1)

57.1% (4)

41.9% (26)

Court
Administrator

43.8% (14)

56.3% (9)

66.7% (4)

42.9% (3)

50.0% (31)*

Other

0.0% (0)

25.0% (4)

16.7% (1)

0.0% (0)

8.1% (5)

Total

32

16

6

7

100% (62)

*One court administrator skipped the question about type of court.
In some categories, the sum of percentages may not be100% due to rounding.

Both urban and rural counties were well represented as 53.2% of respondents worked in
urban counties, 38.7% of respondents worked in rural counties, and 8.1% of respondents chose
not to disclose their county. Within the urban county respondents, 45.5% held the position of
chief judge, 51.5% held the position of court administrator, and 3.0% held another position.
Among rural county respondents, 37.5% held the position of chief judge, 45.8% held the position
of court administrator, and 16.7% held another position.

37

Table 1b. Current Position of Respondents (by county type)
Response
Categories

Urban County
% (N)

Rural County
% (N)

Unknown
County % (N)

Total % (N)

Chief Judge

45.5% (15)

37.5% (9)

40.0% (2)

41.9% (26)

Court Administrator

51.5% (17)

45.8% (11)

60.0% (3)

50.0% (31)

Other

3.0% (1)

16.7% (4)

0.0% (0)

8.1% (5)

Total

33

24

5

100% (62)

In some categories, the sum of percentages may not be 100% due to rounding.

A wide variety of counties were represented. Of the 62 respondents, 56 respondents
chose to identify their county, one respondent described their county as “rural,” and five
respondents chose to leave that portion of the survey blank. Respondents were from 33 separate
counties, and included both rural and urban counties. There were 33 respondents from urban
counties and 24 respondents from rural counties.4 Please see Tables 2a, 2b, and 3a for a
breakdown of respondents’ counties and the indigent defense delivery system breakdown by
county.

4

The classification of counties as urban or rural was determined by the classification system of the U.S. Census.

38

Table 2a. Respondents from Urban Counties
Urban County Name
Allegan
Bay
Genesee
Ingham
Kalamazoo
Kent
Lapeer
Macomb
Oakland
St. Clair
Washtenaw
Wayne
Total

Response (N)
2
1
1
1
3
3
1
1
6
1
2
11
33

Table 2b. Respondents from Rural Counties
Rural County Name
Barry
Calhoun
Cass
Clare and Gladwin
Cheboygan
Crawford
Dickinson
Emmet
Gogebic and Ontonagon
Hillsdale
Lake
Lenawee
Marquette
Mason
Mecosta and Osceola
Montmorency
Ogemaw
Oscoda
Shiawassee
St. Joseph
Van Buren
Total

Response (N)
1
1
1
1
1
1
1
1
1
1
1
2
1
1
2
1
1
1
1
1
1
24*

*One respondent listed their county as “rural.” Five respondents did not indicate their county. Responses are listed
verbatim.

39

Table 3a. System Type by County
Response
Categories

Urban County
% (N)

Rural County
% (N)

Unknown
County % (N)

Total
% (N)

Assigned Counsel

33.3% (11)

16.7% (4)

40.0% (2)

27.4% (17)

Contract

27.3% (9)

41.7% (10)

0.0% (0)

30.6% (19)

Public Defender
Program

3.0% (1)

4.2% (1)

0.0% (0)

3.2% (2)

Mixed Model

27.3% (9)

37.5% (9)

60.0% (3)

33.9% (21)

Other

9.1% (3)

0.0% (0)

0.0% (0)

4.8% (3)

Total (N)

33

24

5

62

In some categories, the sum of percentages may not be 100% due to rounding.

Respondents have a lot of experience working in the courts. When asked how long
respondents held their position, answers ranged from seven months to 37 years, and the
overwhelming majority had multiple years of experience in their position. A wide variety of
indigent defense systems were in place across the courts in which respondents work. The
assigned counsel model represented 27.4% of the courts in which respondents worked, the
contract model represented 30.7%, the public defender program represented 3.2%, a mixture of
assigned counsel and contract was 17.7%, a mixture of public defender and assigned counsel was
11.3%, a mixture of contract and public defender was 1.6%, a mixture of all three models was
3.2%, and 4.8% chose “other” to describe the system of delivery for indigent defense in their

40

jurisdiction. The mixed model delivery systems were combined in the analysis in order to
compare across categories. The mixed model delivery systems represented 33.9% of the sample.
Table 3b. Indigent Defense Systems Utilized
Response
Categories

Chief Judges
% (N)

Court
Administrators
% (N)

Assigned Counsel

23.1% (6)

35.5% (11)

0.0% (0)

27.4% (17)

Contract

34.6% (9)

19.4% (6)

80.0% (4)

30.7% (19)

Public Defender
Program

3.9% (1)

3.2% (1)

0.0% (0)

3.2% (2)

Mixed Model

30.8% (8)

38.7% (12)

20.0% (1)

33.9% (21)

Other

7.7% (2)

3.2% (1)

0.0% (0)

4.8% (3)

Total (N)

26

31

5

62

Other % (N)

Total % (N)

In some categories, the sum of percentages may not be 100% due to rounding.

Overall, a little over half of the respondents were from district courts (52.5%), a little
over a quarter were from circuit courts (26.2%), one-tenth were from both district and circuit
courts (9.8%), and a little over one-tenth were from other types of court, including probate and
family court (11.5%). When sub-divided by positions, 69.2% of chief judges worked in a district
court, 11.5% worked in a circuit court, 3.9% worked in a court that was classified as both district
and circuit, and 15.4% worked in another type of court. Of the court administrators in the study,

41

46.7% worked in a district court, 30.0% worked in a circuit court, 13.3% worked in a court
classified as both district and circuit, and 10.0% worked in another type of court.
Table 4a. Type of Court
Response
Categories

Chief Judges
% (N)

Court
Administrators
% (N)

Other % (N)

Total % (N)

District

69.2% (18)

46.7% (14)

0.0% (0)

52.5% (32)

Circuit

11.5% (3)

30.0% (9)

80.0% (4)

26.2% (16)

District and
Circuit

3.8% (1)

13.3% (4)

20.0% (1)

9.8% (6)

Other

15.4% (4)

10.0% (3)

0.0% (0)

11.5% (7)

Total

26

30

5

61

In some categories, the sum of percentages may not be 100% due to rounding.

Of the 33 respondents that worked in an urban county, 81.8% held a position in a district
court, 15.2% held a position in a circuit court, and 3.0% held a position in another type of court.
Of the 24 respondents that worked in a rural county, 12.5% held a position in a district court,
45.8% held a position in a circuit court, 20.8% held a position in a court classified as both district
and circuit, and 20.8% held a position in another type of court.

42

Table 4b. Type of Court by County Type

Response
Categories

Urban County

Rural County

Unknown
County

Total % (N)

District

81.8% (27)

12.5% (3)

50.0% (2)

52.5% (32)

Circuit

15.2% (5)

45.8% (11)

0.0% (0)

26.2% (16)

District and
Circuit

0.0% (0)

20.8% (5)

25.0% (1)

9.8% (6)

Other

3.0% (1)

20.8% (5)

25.0% (1)

11.5% (7)

Total

33

24

4

61

In some categories, the sum of percentages may not be 100% due to rounding.
*One court administrator skipped this question from an unknown county

Respondents’ Perceptions of Defense Systems
The survey began by asking about respondents’ perceptions of the quality of legal
defense. Specifically, respondents were asked about the quality of legal representation that
defendants receive from private defense compared to public defenders. In this survey, “private
defense counsel” was used to describe counsel that is hired by the defendant and “public
defenders” was used to describe counsel that is provided through the indigent defense system of
the county.5 In the overall response to the statement “defendants represented by private defense

5

It is possible that respondents interpreted “public defenders” to mean public defenders specifically as opposed to
all defense counsel that provides criminal indigent defense, and that this interpretation among some respondents
could have led to different responses. However, the context of the survey and the fact that most counties in

43

counsel generally receive better legal representation than defendants represented by public
defenders,” 12.9% of respondents strongly disagreed with the statement, 41.9% of respondents
disagreed, 27.4% responded with “neutral,” 12.9% agreed with the statement, and 4.8% strongly
agreed. Over half of respondents disagreed or strongly disagreed with the statement, and over a
quarter were neutral. Less than one-fifth agreed with the statement.
Of the 26 chief judges that responded to this statement, 7.7% strongly disagreed, 53.9%
disagreed, 23.1% responded with “neutral,” and 15.4% agreed. Of the 31 court administrators
that responded to this statement, 19.4% strongly disagreed, 35.5% disagreed, 35.5% responded
with “neutral,” 6.5% agreed, and 3.2% strongly agreed. Sixteen chief judges either strongly
disagreed or disagreed with the statement, while 17 court administrators answered in the same
way. This translates into 61.6% of chief judges and 54.9% of court administrators that
responded to this statement either strongly disagreed or disagreed. In terms of agreeing with this
statement, 15.4% chief judges responded that they agreed, while 9.7% of court administrators
agreed or strongly agreed with the statement.
In order to test for any statistical differences to this statement across the type of position
held by respondents, a Kruskal-Wallis H-test was performed. Because of the large number of
categories in relation to the sample size, the five categories (strongly disagree, disagree, neutral,
agree, strongly agree) were collapsed into three categories (disagree, neutral, agree). These
categories were used for all of the following Kruskal-Wallis H-tests. The results suggest that
there is a difference in their perceptions of how private defense compares to indigent defense in
terms of quality (2=7.032; p= 0.030). Specifically, the respondents that fell into the “other”
category were more likely to agree with the statement that “defendants represented by private
Michigan do not have traditional public defenders (and that the survey was reviewed by two subject-area experts for
appropriate language) makes it less likely that there was misinterpretation of the statement.

44

defense counsel generally receive better legal representation than defendants represented by
public defenders.”
Table 5a. Perception of private and public defenders, by position
Response
Categories

Chief Judges
% (N)

Court
Administrators
% (N)

Other
% (N)

Total
% (N)

Strongly disagree

7.7% (2)

19.4% (6)

0.0% (0)

12.9% (8)

Disagree

53.8% (14)

35.5% (11)

20.0% (1)

41.9% (26)

Neutral

23.1% (6)

35.5% (11)

0.0% (0)

27.4% (17)

Agree

15.4% (4)

6.5% (2)

40.0% (2)

12.9% (8)

Strongly Agree

0.0% (0)

3.2% (1)

40.0% (2)

4.8% (3)

Total

26

31

5

62

In some categories, the sum of percentages may not be100% due to rounding.

45

Table 5b. Perception of private and public defenders, by position (Kruskal-Wallis H-test)
Position Held

N

Mean Rank

Chief Judges

26

30.38

Court Administrators

31

29.31

Other

5

50.90

2

p-value

7.032

0.030*

** p < .01; * p < .05

After an analysis across the position held by the respondents was completed, the
differences across the type of court were explored. Frequencies and percentages revealed that
there were more district court respondents who disagree that private defense counsel generally
provided better representation in comparison to circuit court respondents or combined district
and circuit court respondents. Of the 32 respondents from district courts, 65.7% strongly
disagreed or disagreed with the statement that “[d]efendants represented by private defense
counsel generally receive better legal representation than defendants represented by public
defenders,” while 37.6% of the 16 respondents from circuit courts either strongly disagreed or
disagreed with the statement. Of respondents from district courts, 18.7% either agreed or
strongly agreed, while 25.1% of circuit court respondents agreed or strongly agreed. As there
were twice as many respondents from district courts as there were from circuit courts, caution is
suggested in interpreting the results in this exploratory study. A Kruskal-Wallis H-test was
performed in order to test for any statistical differences to this statement across the type of court.
The results suggest that there is no significant difference in their perceptions of how private
defense compares to indigent defense in terms of quality (2=2.801; p=0.423).
46

Table 5c. Perception of private and public defenders, by court type

Response
Categories

District
% (N)

Circuit
% (N)

District and
Circuit
% (N)

Other
% (N)

Total
% (N)

Strongly
disagree

6.3% (2)

18.8% (3)

0.0% (0)

28.6% (2)

12.9% (8)

Disagree

59.4% (19)

18.8% (3)

33.3% (2)

28.6% (2)

41.9% (26)

Neutral

15.6% (5)

37.5% (6)

50.0% (3)

42.9% (3)

27.4% (17)

Agree

15.6% (5)

18.8% (3)

0.0% (0)

0.0% (0)

12.9% (8)

Strongly Agree

3.1% (1)

6.3% (1)

16.7% (1)

0.0% (0)

4.8% (3)

Total

32

16

6

7

62

In some categories, the sum of percentages may not be 100% due to rounding.

47

Table 5d. Perception of private and public defenders, by court type (Kruskal-Wallis H-test)
Court Type

N

Mean Rank

District

32

29.38

Circuit

16

34.31

District and Circuit

6

37.83

Other

7

25.00

2

p-value

2.801

0.423

Next, an analysis of the differences between urban and rural counties was performed. Of
the 33 respondents from urban counties, 66.7% strongly disagreed or disagreed with the
statement “[d]efendants represented by private defense counsel generally receive better legal
representation than defendants represented by public defenders.” In contrast, of the 24
respondents from rural counties, 37.5% strongly disagreed or disagreed with the statement.
Respondents from urban counties agreed or strongly agreed with the statement in 12.1% of cases,
while respondents from rural counties agreed or strongly agreed in 25.0% of cases. Overall,
respondents from urban counties are less likely to respond in agreement. The difference between
the responses from urban and rural counties was statistically significant (2=5.034; p=0.025).
Specifically, rural county respondents were more likely to agree that defendants received better
legal representation from private defense counsel as opposed to public defenders.

48

Table 5e. Perception of private and public defenders, by urban-rural county

Response
Categories

Urban County
% (N)

Rural County
% (N)

Unknown
County
% (N)

Total
% (N)

Strongly disagree

15.2% (5)

4.2% (1)

40.0% (2)

12.9% (8)

Disagree

51.5% (17)

33.3% (8)

20.0% (1)

41.9% (26)

Neutral

21.2% (7)

37.5% (9)

20.0% (1)

27.4% (17)

Agree

9.1% (3)

16.7% (4)

20.0% (1)

12.9% (8)

Strongly Agree

3.0% (1)

8.3% (2)

0.0% (0)

4.8% (3)

Total

33

24

5

62

In some categories, the sum of percentages may not be 100% due to rounding.

Table 5f. Perception of private and public defenders, by urban-rural county (KruskalWallis H-test)
County

N

Mean Rank

Urban

33

25.03

Rural

24

2

p-value

5.034

0.025*

34.46

** p < .01; * p < .05
Lastly, the relationship between indigent defense delivery system and respondents’
perceptions of the quality of private defense counsel compared to public defenders was explored.

49

The type of indigent defense system did not meaningfully correlate with responses to this
statement (see table 5g below for a breakdown of responses by system type). The KruskalWallis H-test suggested that system type was not related to respondents’ perceptions of the
quality of public defense counsel (2=2.107; p=0.716).

50

Table 5g. Perception of private and public defenders, by system type
Response
Categories

Assigned
Counsel
% (N)

Contract
% (N)

Public
Defender
Program
% (N)

Mixed
Model
% (N)

Other
% (N)

Total
% (N)

Strongly
Disagree

17.6%
(3)

5.3%
(1)

50.0%
(1)

9.5%
(2)

33.3%
(1)

12.9%
(8)

Disagree

41.2%
(7)

42.1%
(8)

0.0%
(0)

47.6%
(10)

33.3%
(1)

41.9%
(26)

Neutral

29.4%
(5)

26.3%
(5)

50.0%
(1)

28.6%
(6)

0.0%
(0)

27.4%
(17)

Agree

11.8%
(2)

15.8%
(3)

0.0%
(0)

14.3%
(3)

0.0%
(0)

12.9%
(8)

Strongly
Agree

0.0%
(0)

10.5%
(2)

0.0%
(0)

0.0%
(0)

33.3%
(1)

4.8%
(3)

Total

17

19

2

21

3

62

In some categories, the sum of percentages may not be 100% due to rounding.

51

Table 5h. Perception of private and public defenders, by system type (Kruskal-Wallis Htest)
System Type

N

Mean Rank

Assigned Counsel

17

28.82

Contract

19

35.79

Public Defender
Program

2

23.75

Mixed Model

21

30.88

Other

3

29.00

2

p-value

2.107

0.716

** p < .01; * p < .05

Perceptions of Funding
After asking respondents about the differences in quality of defense between private and
public defenders, the survey queried respondents about their perceptions of funding of indigent
defense. Approximately half of all respondents felt that indigent defense was not sufficiently
funded, and just under a third felt that indigent defense was sufficiently funded. In response to
“indigent defense in my jurisdiction is sufficiently funded,” 16.1% strongly disagreed, 35.5%
disagreed, 17.7% replied with neutral, 19.4% agreed, and 11.3% strongly agreed.
When respondents were subdivided based on the position they held, the results were
fairly similar. Of the 26 chief judges that responded, 46.1% strongly disagreed or disagreed that
indigent defense in their jurisdiction was sufficiently funded. Of the 31 court administrators that
52

responded to this statement, 51.7% strongly disagreed or disagreed with the statement. There
were five chief judges and five court administrators that responded to the statement with
“neutral,” which translates to 19.2% of chief judges and 16.1% of court administrators.
Respondents that held the position of chief judge agreed or strongly agreed with the statement in
34.7% of cases, while court administrators agreed or strongly agreed 32.3% of the time. Chief
judges and court administrators responded in similar ways to this statement, and no statistical
difference was found between court administrators and chief judges in their perception of
funding for indigent defense (2=1.789; p=0.409).

Table 6a. Perception of sufficiency of funding for indigent defense, by position

Response
Categories

Chief Judges
% (N)

Court
Administrators
% (N)

Other % (N)

Total % (N)

Strongly Disagree

11.5% (3)

19.4% (6)

20.0% (1)

16.1% (10)

Disagree

34.6% (9)

32.3% (10)

60.0% (3)

35.5% (22)

Neutral

19.2% (5)

16.1% (5)

20.0% (1)

17.7% (11)

Agree

30.8% (8)

12.9% (4)

0.0% (0)

19.4% (12)

Strongly Agree

3.8% (1)

19.4% (6)

0.0% (0)

11.3% (7)

Total

26

31

5

62

In some categories, the sum of percentages may not be 100% due to rounding.

53

Table 6b. Perception of sufficiency of funding for indigent defense, by position (KruskalWallis H-test)
Position

N

Mean Rank

Chief Judge

26

32.88

Court Administrator

31

31.94

Other

5

21.60

2

p-value

1.789

0.409

** p < .01; * p < .05

There were more respondents from the circuit courts and combined district and circuit
courts who disagree that indigent defense was sufficiently funded. Of the 32 respondents from
district courts, 43.8% strongly disagreed or disagreed that indigent defense was sufficiently
funded in their jurisdiction. Of the 16 respondents from circuit courts, 56.3% strongly disagreed
or disagreed with the statement. Across district courts, 34.4% agreed or strongly agreed with the
statement, while 25.0 % of respondents from circuit courts strongly agreed or agreed with the
statement. However, no statistical differences across responses were found based on the type of
court (2=3.714; p=0.294).

54

Table 6c. Perception of sufficiency of funding for indigent defense, by court type

Response
Categories

District
% (N)

Circuit
% (N)

District and
Circuit
% (N)

Other
% (N)

Total % (N)

Strongly
disagree

12.5% (4)

6.3% (1)

33.3% (2)

42.9% (3)

16.1% (10)

Disagree

31.3% (10)

50.0% (8)

50.0% (3)

14.3% (1)

35.5% (22)

Neutral

21.9% (7)

18.8% (3)

0.0% (0)

14.3% (1)

17.7% (11)

Agree

18.8% (6)

25.0% (4)

16.7% (1)

14.3% (1)

19.4% (12)

Strongly Agree

15.6% (5)

0.0% (0)

0.0% (0)

14.3% (1)

11.3% (7)

Total

32

16

6

7

61

In some categories, the sum of percentages may not be 100% due to rounding.

Table 6d. Perception of sufficiency of funding for indigent defense, by court type (KruskalWallis H-test)
Court Type

N

Mean Rank

District

32

34.14

Circuit

16

30.59

District and Circuit

6

20.83

Other

7

26.29

55

2

p-value

3.714

0.294

There were also some modest differences between urban and rural courts in terms of
frequencies and percentages, but the differences were not statistically supported (2=1.739;
p=0.187). Of the 33 respondents from urban counties, 45.5% strongly disagreed or disagreed
with the statement, while 58.3% of respondents from rural counties strongly disagreed or
disagreed with the statement. Urban county respondents agreed or strongly agreed that indigent
defense was sufficiently funded in their jurisdiction in 33.4% of cases, while 29.2% of
respondents from rural counties agreed or strongly agreed. Although one might expect funding
to vary based on county type, as the results of the Kruskal-Wallis H test suggested, the responses
were similar across rural and urban counties to this statement.

Table 6e. Perception of sufficiency of funding for indigent defense, by rural-urban county

Response
Categories

Urban County
% (N)

Rural County
% (N)

Unknown
County % (N)

Total % (N)

Strongly Disagree

9.1% (3)

25.0% (6)

20.0% (1)

16.1% (10)

Disagree

36.4% (12)

33.3% (8)

40.0% (2)

35.5% (22)

Neutral

21.2% (7)

12.5% (3)

20.0% (1)

17.7% (11)

Agree

18.2% (6)

25.0% (6)

0.0% (0)

19.4% (12)

Strongly Agree

15.2% (5)

4.2% (1)

20.0% (1)

11.3% (7)

Total

33

24

5

62

In some categories, the sum of percentages may not be 100% due to rounding.

56

Table 6f. Perception of sufficiency of funding for indigent defense, by rural-urban county
(Kruskal-Wallis H-test)

County

N

Mean Rank

Urban

33

31.39

Rural

24

2

p-value

1.739

0.187

25.71

As with all other questions in the survey, responses did not meaningfully correlate with
the type of indigent defense delivery system, although this may be due, in part, to the vast
diversity of delivery systems across the counties in this study, making it difficult to perform
direct comparisons (please see Table 6g for a breakdown of responses by system type). There
was no statistical difference based on indigent defense delivery system (2=3.261; p=0.515).

57

Table 6g. Perception of sufficiency of funding for indigent defense, by system type

Response
Categories
% (N)

Assigned
Counsel
% (N)

Contract
% (N)

Public
Defender
Program
% (N)

Mixed
Model
% (N)

Other
% (N)

Total
% (N)

Strongly
Disagree

1.8%
(2)

15.8%
(3)

0.0%
(0)

19.0%
(4)

33.3%
(1)

16.1%
(10)

Disagree

29.4%
(5)

42.1%
(8)

50.0%
(1)

28.6%
(6)

66.7%
(2)

35.5%
(22)

Neutral

29.4%
(5)

15.8%
(3)

0.0%
(0)

14.3%
(3)

0.0%
(0)

17.7%
(11)

Agree

23.5%
(4)

15.8%
(3)

0.0%
(0)

23.8%
(5)

0.0%
(0)

19.4%
(12)

Strongly
Agree

5.9%
(1)

10.5%
(2)

50.0%
(1)

14.3%
(3)

0.0%
(0)

11.3%
(7)

Total

17

19

2

21

3

62

In some categories, the sum of percentages may not be 100% due to rounding.

58

Table 6h. Perception of sufficiency of funding for indigent defense, by system type
(Kruskal-Wallis H-test)

System Type

N

Mean Rank

Assigned Counsel

17

33.26

Contract

19

29.95

Public Defender
Program

2

40.25

Mixed Model

21

32.83

Other

3

16.17

2

p-value

3.261

0.515

** p < .01; * p < .05

Respondents’ Perceptions of Michigan Indigent Defense Commission Standards
Considering that chief judges and court administrators are responsible for implementing
the minimum standards in their courts, it is a positive finding that the overwhelming majority of
respondents were familiar with the new Michigan Indigent Defense Commission minimum
standards. In response to “I am familiar with the new Michigan Indigent Defense Commission
minimum standards,” 3.2% strongly disagreed with the statement, 3.2% disagreed, 9.7% replied
with neutral, 53.2% agreed, and 30.7% strongly agreed.
When respondents were sub-divided based on the position that they held, 11.6% of chief
judges and 3.2% of court administrators strongly disagreed or disagreed with the statement.

59

Chief judges agreed or strongly agreed that they were familiar with the new minimum standards
73.1% of the time, while court administrators agreed or strongly agreed 90.3% of the time. A
statistical difference was found based on the type of position held (2=6.677; p=0.035).
Although the Kruskal-Wallis H-test illustrates that the difference is meaningful, it is still
important to note that a large majority of both chief judges and court administrators were
familiar with the minimum standards, even if court administrators were more likely to be
familiar.
Table 7a. Familiarity with MIDC minimum standards, by position

Response
Categories

Chief Judges
% (N)

Court
Administrators
% (N)

Other % (N)

Total % (N)

Strongly Disagree

3.8% (1)

3.2% (1)

0.0% (0)

3.2% (2)

Disagree

7.7% (2)

0.0% (0)

0.0% (0)

3.2% (2)

Neutral

15.4% (4)

6.5% (2)

0.0% (0)

9.7% (6)

Agree

57.7% (15)

48.4% (15)

60.0% (3)

53.2% (33)

Strongly Agree

15.4% (4)

41.9% (13)

40.0% (2)

30.6% (19)

Total

26

31

5

62

In some categories, the sum of percentages may not be 100% due to rounding.

60

Table 7b. Familiarity with MIDC minimum standards, by position (Kruskal-Wallis H-test)
Position

N

Mean Rank

Chief Judge

26

25.21

Court Administrator

31

35.82

Other

5

37.40

2

p-value

6.677

0.035*

** p < .01; * p < .05

When this statement was explored across different types of courts in terms of the
frequencies and percentages, similarities were observed between respondents from different
types of courts in their familiarity with the new minimum standards. Respondents from district
courts were familiar with the new minimum standards in 84.4% of cases, while respondents from
circuit courts were familiar with the standards in 81.3% of cases. Not only were the percentages
and frequencies very similar, but the Kruskal-Wallis H-test results suggested that there was no
statistical difference based on type of court as well (2=1.115; p=0.773).

61

Table 7c. Familiarity with MIDC minimum standards, by court type

Response
Categories

District
% (N)

Circuit
% (N)

District and
Circuit
% (N)

Other
% (N)

Total % (N)

Strongly disagree

0.0% (0)

12.5% (2)

0.0% (0)

0.0% (0)

3.2% (2)

Disagree

3.1% (1)

0.0% (0)

0.0% (0)

14.3% (1)

3.2% (2)

Neutral

12.5% (4)

6.3% (1)

16.7% (1)

0.0% (0)

9.7% (6)

Agree

56.3% (18)

43.8% (7)

33.3% (2)

71.4% (5)

53.2% (33)

Strongly Agree

28.1% (9)

37.5% (6)

50.0% (3)

14.3% (1)

30.6% (19)

Total

32

16

6

7

62

In some categories, the sum of percentages may not be 100% due to rounding.

62

Table 7d. Familiarity with MIDC minimum standards, by court type (Kruskal-Wallis Htest)
Court Type

N

Mean Rank

District

32

30.58

Circuit

16

31.75

District and Circuit

6

36.08

Other

7

26.86

2

p-value

1.115

0.773

** p < .01; * p < .05

Similar findings across different counties were supported by the frequencies, percentages,
and the Kruskal-Wallis H test (2=1.163; p=0.281). In urban counties, 87.9% of respondents
agreed or strongly agreed that they were familiar with the new minimum standards. In rural
counties, 79.2% of respondents were familiar with the new minimum standards.

63

Table 7e. Familiarity with MIDC minimum standards, by rural-urban county

Response
Categories

Urban County
% (N)

Rural County %
(N)

Unknown
County % (N)

Total % (N)

Strongly Disagree

3.0% (1)

4.2% (1)

0.0% (0)

3.2% (2)

Disagree

3.0% (1)

4.2% (1)

0.0% (0)

3.2% (2)

Neutral

6.1% (2)

12.5% (3)

20.0% (1)

9.7% (6)

Agree

51.5% (17)

54.2% (13)

60.0% (3)

53.2% (33)

Strongly Agree

36.4% (12)

25.0% (6)

20.0% (1)

30.6% (19)

Total

33

24

5

62

In some categories, the sum of percentages may not 100% due to rounding.

Table 7f. Familiarity with MIDC minimum standards, by rural-urban county (KruskalWallis H-test)

County

N

Mean Rank

Urban

33

30.83

Rural

24

26.48

** p < .01; * p < .05

64

2

p-value

1.163

0.281

Not only were there similar findings across county and court type in terms of familiarity
with the new minimum standards, but similar findings were also observed when respondents
were asked whether they were familiar with the new minimum standards, regardless of the type
of indigent defense delivery system. Familiarity with the new minimum standards did not
correlate meaningfully with the type of indigent defense delivery system (please see Table 7g for
a breakdown of responses by type of system), and the Kruskal-Wallis H-test indicated that there
was no statistical difference based on the type of indigent delivery system (2=7.424; p=0.115).
Table 7g. Familiarity with MIDC minimum standards, by system type

Response
Categories

Assigned
Counsel
% (N)

Contract
% (N)

Public
Defender
Program
% (N)

Mixed
Model
% (N)

Other
% (N)

Total %
(N)

Strongly
Disagree

11.8%
(2)

0.0%
(0)

0.0%
(0)

0.0%
(0)

0.0%
(0)

3.2%
(2)

Disagree

0.0%
(0)

10.5%
(2)

0.0%
(0)

0.0%
(0)

0.0%
(0)

3.2%
(2)

Neutral

23.5%
(4)

10.5%
(2)

0.0%
(0)

0.0%
(0)

0.0%
(0)

9.7%
(6)

Agree

35.3%
(6)

57.9%
(11)

100.0%
(2)

52.4%
(11)

100.0%
(3)

53.2%
(33)

Strongly
Agree

29.4%
(5)

21.1%
(4)

0.0%
(0)

47.6%
(10)

0.0%
(0)

30.6%
(19)

Total

17

19

2

21

3

62

In some categories, the sum of percentages may not be 100% due to rounding.

65

Table 7h. Familiarity with MIDC minimum standards, by system type (Kruskal-Wallis H
test)
System Type

N

Mean Rank

Assigned Counsel

17

27.06

Contract

19

27.95

Public Defender
Program

2

27.00

Mixed Model

21

39.38

Other

3

27.00

2

p-value

7.424

0.115

** p < .01; * p < .05

Need for Reform
When respondents were queried about the need for reform in Michigan, the findings were
consistent across the positions held, court type, county type, and delivery system type. While the
majority of respondents agreed or strongly agreed that reform was necessary for indigent defense
in Michigan, nine of 62 respondents disagreed, and one strongly disagreed. In response to
“[i]ndigent defense reform was necessary in Michigan,” 1.6% strongly disagreed, 14.8%
disagreed, 18.0% felt neutral about the statement, 42.6% agreed, and 23.0% strongly agreed.
When subdivided by the position held, 73.1% of chief judges agreed or strongly agreed
with the statement, while 60.0% of court administrators agreed or strongly agreed with the

66

statement. The percentages may create more of an illusion of difference than is truly the case,
since 19 chief judges and 18 court administrators agreed or strongly agreed with the statement,
and there were no meaningful differences between respondents based on the position that they
held (2=0.001; p=1.000).
Table 8a. Perception of necessity of indigent defense reform in Michigan, by position

Response
Categories

Chief Judges
% (N)

Court
Administrators
% (N)

Other % (N)

Total % (N)

Strongly Disagree

0.0% (0)

3.3% (1)

0.0% (0)

1.6% (1)

Disagree

15.4% (4)

16.7% (5)

0.0% (0)

14.8% (9)

Neutral

11.5% (3)

20.0% (6)

40.0% (2)

18.0% (11)

Agree

57.7% (15)

30.0% (9)

40.0% (2)

42.6% (26)

Strongly Agree

15.4% (4)

30.0% (9)

20.0% (1)

23.0% (14)

Total

26

30

5

61

In some categories, the sum of percentages may not be 100% due to rounding.

67

Table 8b. Perception of necessity of indigent defense reform in Michigan, by position
(Kruskal-Wallis H-test)
Position Held

N

Mean Rank

Chief Judges

26

31.06

Court Administrators

30

30.93

Other

5

31.10

2

p-value

0.001

1.000

** p < .01; * p < .05

When respondents were subdivided based on the type of court, 51.6% of respondents
from district courts and 87.6% of respondents from circuit courts agreed or strongly agreed with
the statement. Thus, it appears that respondents from circuit courts were more likely to believe
that indigent defense reform was necessary. This should, however, be interpreted cautiously
given the relatively small number of respondents, as well as the Kruskal-Wallis H-test results
that indicate the differences between court type are not statistically significant (2=3.007;
p=0.390).

68

Table 8c. Perception of necessity of indigent defense reform in Michigan, by court type

Response
Categories

District
% (N)

Circuit
% (N)

District and
Circuit
% (N)

Other
% (N)

Total % (N)

Strongly disagree

0.0% (0)

0.0% (0)

0.0% (0)

14.3% (1)

1.6% (1)

Disagree

22.6% (7)

6.3% (1)

0.0% (0)

0.0% (0)

14.8% (9)

Neutral

25.8% (8)

6.3% (1)

33.3% (2)

0.0% (0)

18.0% (11)

Agree

29.0% (9)

68.8% (11)

33.3% (2)

57.1% (4)

42.6% (26)

Strongly Agree

22.6% (7)

18.8% (3)

33.3% (2)

28.6% (2)

23.0% (14)

Total

31

16

6

7

61

In some categories, the sum of percentages may not be 100% due to rounding.

69

Table 8d. Perception of necessity of indigent defense reform in Michigan, by court type
(Kruskal-Wallis H-test)
Court Type

N

Mean Rank

District

31

26.92

Circuit

16

34.34

District and Circuit

6

34.00

Other

7

34.57

2

p-value

3.007

0.390

** p < .01; * p < .05

There were more rural county respondents who agree that indigent defense reform was
necessary when compared with urban county respondents. When subdivided by county type,
21.9% of respondents from urban counties disagreed with the statement, while only 8.4% of
respondents from rural counties strongly disagreed or disagreed with the statement. Just over
half of urban county respondents (53.2%) agreed or strongly agreed that indigent defense reform
was necessary, while 79.2% of rural county respondents agreed or strongly agreed that reform
was necessary. However, there was no statistical difference found in this statement based on the
county type (2=2.631; p=0.105).

70

Table 8e. Perception of necessity of indigent defense reform in Michigan, by rural-urban
county

Response
Categories

Urban County
% (N)

Rural County %
(N)

Unknown
County % (N)

Total % (N)

Strongly Disagree

0.0% (0)

4.2% (1)

0.0% (0)

1.6% (1)

Disagree

21.9% (7)

4.2% (1)

20.0% (1)

14.8% (9)

Neutral

25.0% (8)

12.5% (3)

0.0% (0)

18.0% (11)

Agree

34.4% (11)

54.2% (13)

40.0% (2)

42.6% (26)

Strongly Agree

18.8% (6)

25.0% (6)

40.0% (2)

23.0% (14)

Total

32

24

5

61

*A court administrator from a district court in an urban county skipped this question.

Table 8f. Perception of necessity of indigent defense reform in Michigan, by rural-urban
county (Kruskal-Wallis H-test)
County

N

Mean Rank

Urban

32

25.59

Rural

24

32.38

** p < .01; * p < .05

71

2

p-value

2.631

0.105

Across all questions, the type of indigent defense delivery system did not correlate with
responses. Please see Table 8g for a breakdown of responses by type of system, and Table 8h for
the Kruskal-Wallis H-test results that confirm this finding (2=1.234; p=0.873).

Table 8g. Perception of necessity of indigent defense reform in Michigan, by system type

Response
Categories

Assigned
Counsel
% (N)

Contract
% (N)

Public
Defender
Program
% (N)

Mixed
Model
% (N)

Other
% (N)

Total %
(N)

Strongly
Disagree

0.0%
(0)

0.0%
(0)

0.0%
(0)

5.0%
(1)

0.0%
(0)

1.6%
(1)

Disagree

23.5%
(4)

10.5%
(2)

0.0%
(0)

15.0%
(3)

0.0%
(0)

14.8%
(9)

Neutral

17.6%
(3)

15.8%
(3)

50.0%
(1)

15.0%
(3)

33.3%
(1)

18.0%
(11)

Agree

35.3%
(6)

47.4%
(9)

50.0%
(1)

45.0%
(9)

33.3%
(1)

42.6%
(26)

Strongly
Agree

23.5%
(4)

26.3%
(5)

0.0%
(0)

20.0%
(4)

33.3%
(1)

23.0%
(14)

Total

17

19

2

20

3

61

*A respondent from mix of public defender and assigned counsel skipped this question

72

8h. Perception of necessity of indigent defense reform in Michigan, by system type
(Kruskal-Wallis H-test)

System Type

N

Mean Rank

Assigned Counsel

17

29.24

Contract

19

33.84

Public Defender
Program

2

25.25

Mixed Model

20

29.78

Other

3

35.00

2

p-value

1.234

0.873

** p < .01; * p < .05

Summary of Quantitative Findings
The overall findings suggest that there is a significant correlation with the position type
and the familiarity of respondents with the new minimum standards. Specifically, court
administrators were more likely to answer that they were familiar with the minimum standards
(X2 = 6.677; p= 0.035). However, the majority of chief judges and court administrators were
familiar with the standards, so despite this significant finding, it appears that an overwhelming
majority of the respondents of the survey were familiar with the minimum standards. The only
other significant relationships that were found in the data (according to the H-test results)
involved the perception of quality of legal defense in terms of private defense and public
defenders. Both the position held (X2 = 7.032; p= 0.030) and the type of county (X2 = 5.034; p=
73

0.025) were significant according to the H-test results. It is possible that the sample size,
specifically the five individuals in the “other” category for position type, are responsible for the
significant findings, especially since chief judges and court administrators answered very
similarly to this Likert statement. As a result, although this finding is significant, it may not
reveal much, especially since chief judges and court administrators had a similar response (they
generally did not view the quality of private counsel as superior to public defenders).
Respondents in rural counties were more likely to agree that defendants that received private
defense counsel instead of public defenders had higher quality representation.
All of the other H-test results indicated that the differences between positions held,
county type, court type, and indigent defense delivery system were not significant. The results
indicated that overall, respondents considered indigent defense underfunded, but a minority did
not agree (approximately half of all respondents felt that indigent defense was not sufficiently
funded, and just under a third felt that indigent defense was sufficiently funded). Additionally,
they were familiar with the new minimum standards, and they felt that indigent defense reform
was necessary in Michigan. It is positive that there is a high level of knowledge about the reform
process across all respondents, and that there is a view that reform is necessary in Michigan.
This can help provide a positive context that is supportive of change, especially considering that
major stakeholders are familiar with the reform, and feel that reform was necessary.
Open-Ended Questions
Open-ended questions were examined according to the independent variables that were
used for the Likert scale questions: (1) position held, (2) court type, (3) county type, and (4)
indigent defense delivery system type. The responses were compared across these variables, and
there were no meaningful differences that emerged (other than some themes specific to rural

74

counties that are discussed below), so the overall findings are presented as a whole in terms of
the themes that emerged.
When queried about the ways that the minimum standards would change indigent defense
in their jurisdiction, several themes emerged. Fifty-six respondents answered this question, and
34 of these responses included positive statements that focused on improved representation and
better outcomes for indigent defendants. The majority of positive responses discussed the
benefits to indigent defendants and the improvements that continuing education and resources
would have on the attorneys that provide legal representation to indigent defendants. Responses
included “improved compensation for attorneys,” improving attorneys’ skills, “improve attorneyclient relations,” improving communication, improving due process, and improving the overall
criminal justice system.
Six responses were overall negative, focusing on the reforms not being feasible, adding
more cost without much benefit, creating “a back log for the courts,” and concerns over having
counsel at first appearance. One respondent wrote:
I think the continuing ed and client interview components are good. I think the counsel at
first appearance is good in concept but not in reality. I can see that this requirement will
actually result in misdemeanor defendants spending more initial time pretrial in jail rather
than less. Particularly not practical or functional with regard to weekend arraignments.
Also, we handle walk-in arraignments all day, every day currently. Requiring counsel at
first appearance will actually require us to set specific times, making it far less
convenient for a defendant to come to court and get arraigned.

75

This sentiment was echoed in other responses across several questions, as concerns about waiting
for counsel to arrive were discussed. Fourteen responses centered on the increased costs
associated with the reforms. Two respondents indicated that it was too early to tell how the
minimum standards would change indigent defense in their jurisdiction. Four respondents
indicated that they did not expect any changes to occur in their jurisdiction as a result of the new
minimum standards. In one case, the respondent wrote that their county already reformed their
system even before the new minimum standards, while another expressed doubt about the
reform. The respondent stated: “Very little. Statewide solutions are typically geared toward
solving problems in the biggest counties.”
When respondents were asked about how the new minimum standards would impact the
current models through which indigent defense is delivered in their jurisdiction, if at all, 55
respondents chose to answer. Six respondents indicated that the current model of delivery for
criminal indigent defense would not be impacted by the new minimum standards. Other
respondents wrote about the time and financial burden that it would place on their delivery
system. Five respondents indicated that their county was considering or planning to change their
current model to the public defender model. The results were fairly mixed, with some
respondents indicating the changes would lead to better representation and a better model in their
jurisdiction, and some wrote that the changes would complicate their model and result in lower
quality representation. The responses were overall shorter in length when compared with the
other open-ended questions, potentially reflecting this early stage in the reform process.
The issue of providing legal representation at first appearance in court was discussed in
four of the responses. While some respondents discussed it as a fact that would simply create
changes in their model of delivery, one respondent was concerned that it would create a burden

76

for their district. One respondent echoed this sentiment by claiming that “It will drastically
reshape what we do during the week and on weekends […], it will likely reduce available
arraignment access.” Concerns over cost, delaying court processes, and burdening the courts
were discussed across respondents from various counties. A respondent from a small rural
county questioned how the standards could realistically be implemented. Another respondent
indicated their concern over the new minimum standards by stating: “They will complicate a
system that is working fine.”
Involvement and Role in Creating Compliance Plans
Forty-four out of 57 respondents to the question “[w]ill you be involved in creating the
compliance plan?” answered affirmatively that they would be involved in the creation of the
compliance plan. Eight respondents were unsure if they would be involved, and two responded
that they would not be involved. Considering that chief judges and court administrators will be
faced with this reform in their courts, it is reassuring that the majority of the respondents were
sure that they would be involved in creating the compliance plans. When respondents were
queried about their anticipated role in creating the compliance plan for their jurisdiction, 49
respondents wrote about their involvement. Seven respondents indicated that they were not sure
about their specific role, despite answering that they would be involved.
The responses fell into several categories: creating the compliance plan, providing a
support role in terms of advising or providing information such as statistics, and overseeing the
compliance plan to ensure that it was properly implemented. Both court administrators and chief
judges indicated that they would participate in an advisory role or in a creation role. The roles
varied across the counties, and in some cases the chief judges advised, while the court
administrators were the primary creators of the plan, and in other cases the court administrators

77

provided an advisory role while the chief judges took the leadership position in creating the
compliance plans. This variation in roles was not correlated with the different types of counties,
and potentially reflected the random variation of the ways that different courts choose to delegate
different responsibilities, and the ways in which court administrators and chief judges work
together depending on the court’s culture. In order to determine this, the open-ended responses
were compared across categories. The qualitative responses were separated according to
position type and compared. Chief judges and court administrators had similar responses. This
comparison was also done by separating responses according to district and circuit courts, urban
and rural counties, and by indigent defense delivery system. The independent variables that were
examined for the Likert scale questions were also used to examine the open-ended responses.
The examination revealed that there was no meaningful relationship between these independent
variables and the qualitative responses of respondents.
The survey also asked about the role of MIDC personnel. Specifically, “What will be the
role of MIDC personnel in creating the compliance plan in your community?” Fifty-four
respondents answered this question, and 27 responded with statements about “providing
guidance” and playing an “advisory” role in the process. However, a significant portion of the
respondents were unsure. Seventeen respondents stated that they did not know what the MIDC
personnel’s role would be in creating the compliance plan. Only one respondent provided a
detailed answer, stating: “Assisting with information, including what plans must include and best
practices. I also understand MIDC will be the ‘gatekeeper’ for grant applications to implement
portions of the plans that will require funding.”
When asked about who is responsible for overseeing the minimum standards, there were
58 responses. Fifteen respondents answered that they did not know who was responsible for

78

overseeing the minimum standards in their jurisdiction. Two respondents wrote that the MIDC
was responsible. Thirty respondents wrote that the chief judge, court administrator, or both
would be responsible for overseeing the minimum standards. It appears that at this early stage, it
is not always clear exactly who will be responsible for oversight among the respondents of the
survey.
Anticipated Changes to Responsibilities
The survey asked, “How do you anticipate the responsibilities of chief judges changing in
response to the minimum standards?” Fifty-five answers were provided. Fourteen respondents
stated that they did not anticipate the responsibilities of the chief judges changing, and 14
respondents stated that they did not know. One respondent showed his support with this answer:
“I am the Chief Judge. The Public Defenders minimum standards have my attention, support,
and assistance in implementation.” Another stated: “[t]he changes help to remove judges from
the process as it relates to the attorneys and their defense strategies on a case. We welcome the
change.” Some respondents indicated that they expected the burden to increase, but were vague
about the burden, typically stating that the workload would increase. One respondent predicted
that the first set of minimum standards may not change the responsibilities of chief judges, but
future sets might impact the responsibilities, writing: “[n]ot significantly at this time. Will likely
change if the judicial independence standard gets adopted at a later date.” The most detailed
respondent wrote: “[w]hile I will no longer be responsible for the indigent contract, I will
monitor representation to make sure that the standards are met. Some processes will have to be
adjusted to allow time for attorneys to talk to defendants prior to arraignment.” One respondent
indicated that the responsibilities would lessen for chief judges.

79

The same question about responsibilities changing as a result of the new reform was also
asked as it relates to the responsibilities of court administrators. Specifically, “How do you
anticipate the responsibilities of court administrators changing in response to the minimum
standards?” There were fifty-five answers to this question. Eleven respondents did not know,
while 19 indicated that the burden would increase on court administrators, specifically that they
would be required to monitor and help ensure that the minimum standards were met. Four
respondents indicated that court administrators would have less work and fewer burdens. Five
respondents did not think there would be any changes in terms of responsibilities for court
administrators.
Respondents’ Thoughts on Changes That Minimum Standards May Bring
Fifty-seven respondents wrote about their thoughts on the changes that the new minimum
standards may bring to their jurisdictions. Overall, responses to this inquiry were mixed. While
one respondent wrote that “I am in complete support of the goal. I think the first set of standards
are scratching the surface and hope that they will build momentum for even more change,”
another stated simply that the changes were “unnecessary.” Although many respondents were
optimistic that the changes would be positive, a few notable responses indicated that the changes
would complicate the system or create unnecessary burdens. Although most of the more
negative responses were brief, one detailed response captured the frustration of a stakeholder:
Why do we change things that are not broken? If there are issues in a few jurisdictions,
then deal with them. Majority of the situations in the state are handled fair and
representation is more than appropriate. Again, it is nice that there is a standard for
education to continue, however, a good attorney would do this anyway. Based on the
crime, individuals are given attorneys that can represent the individual and provide the

80

best services/and ask for special request. The state paying out more dollars as well, when
they indicate they do not have dollars. The cost of hiring staff, a regional MIDC person grant manager -this is expensive increased cost.
In addition to increased costs, other concerns included confusion about the actual changes and
creating unnecessary burdens, especially for rural counties in which resources are already scarce.
Other mixed responses included cautious optimism, illustrating support for the changes in theory,
as well as concerns over the implementation of the new minimum standards. For example, one
respondent wrote: “I think the change is good and necessary. The theory, overall philosophy of
this initiative has merit. The implementation could be problematic.” One respondent indicated
that while overall the minimum standards were a good idea, some of the requirements—
particularly requiring legal representation at the first appearance in court—was “too burdensome
for the benefit.” Another respondent captures the concern for rural counties in this statement:
“[w]ell intended, unsure if [it] will actually improve our services, considering we are a rural
jurisdiction and have a hard enough time getting lawyers as it is.”
Three respondents wrote that the changes were overdue. This respondent captured the
sentiment with the following answer:
The changes are overdue. It is a step in the direction to allow all criminal justice
stakeholders (defense attorneys, prosecutors, etc.) to have a fair and balanced
opportunity. This also removes the judiciary from the process. For example, we do not
tell the prosecutor’s office how much they can spend on the case, but the court does for
defense attorneys. No longer will this awkward relationship exist.

81

Funding and ensuring that legal counsel is available at the first appearance were among
the main concerns for respondents that were skeptical of implementing the new minimum
standards.
My concern is that the money will not be there to pay for these changes; our county has
moved ahead without any state monies—at some point I don’t think they will be able to
sustain what they have done without state money.
Additionally, some courtrooms are architecturally limiting in terms of providing some basic
standards. Undoubtedly, funding and time would be necessary to make adjustments. One
respondent commented that “[i]t may be logistically difficult to implement some of the
standards, for example providing attorney-client meeting rooms, so it may take some time and
funding changes before agencies can comply.”
Challenges in Implementing the MIDC’s First Set of Minimum Standards
Fifty-eight respondents answered the question, “[w]hat challenges do you anticipate in
implementing the Michigan Indigent Defense Commission’s first set of minimum standards in
your jurisdiction?” Cost was by far the biggest concern in response to implementation. There
were 32 responses that included funding as a major challenge for implementing the minimum
standards in the jurisdiction in which respondents worked. While some attributed the
requirement to have an attorney at arraignment as the main reason for an increase in costs, others
cited limited resources to make other changes, such as providing private meeting areas for
attorneys and clients. The following response captures concerns echoed by many:
Cost - The Legislature needs to guarantee that funding will be available. Acceptance of
Change - In a culture that has not seen much change in some time, it will be difficult for

82

local practices/policies to adjust. We are also considering a regional approach, i.e. 1
Public Defender for 2 counties. This creates its own logistical and funding challenges as
well.
A lack of trust that funding would be provided by the state and that the burden would not fall
entirely on counties was present in multiple responses. For example:
I think the standards are reasonable, however with limited space in some courts it may be
challenging finding a private area for defendant and counsel to meet. I also believe that
money will become an issue at some point. I don't believe our legislators have the
people’s best interest at heart so therefore funding may be an issue.
Although a few respondents wrote that they did not anticipate challenges or that it was too early
to tell what those challenges would be, many respondents did feel that the challenges would
mostly revolve around funding, providing an attorney at first appearance, making necessary
changes to the courts to allow for private meeting areas between attorneys and clients, being able
to find enough qualified attorneys to provide indigent defense, and getting buy-in from the
stakeholders. One respondent noted that while there were certainly challenges and the court
proceedings may be slowed down even further, they wrote that these burdens were worthy
because “protecting the rights of all individuals must be a priority, even if it slows things down a
bit.”
Additional Insight from Chief Judges and Court Administrators
Respondents were asked to “provide any additional insight on the response to minimum
standards in your jurisdiction that has not been covered elsewhere in the survey.” Twenty-two
responses were provided, but nine of these responses said that they had nothing further to add.

83

Of the respondents that answered this question, concerns were discussed as well as potential
solutions. For example, one respondent wrote: “I strongly suspect that the ideals will not be
realized as the budget demands will be prohibitive.” Another asked about a potential model that
could be used to implement the minimum standards:
Would like a good template for what is required for representation by counsel at first
arraignment. How is that actually accomplished without bringing the whole system to a
halt when you have 30 arraignments on the same morning. If counties are in compliance
with that part, how are they doing it?
One respondent offered a problem and a solution in a short response: “I think that the
requirement on having an attorney present at arraignment is not needed. Maybe the court rule
could be changed to not allow plea at arraignment.” Another respondent offered a potential
solution if the minimum standards were not effective after initial implementation. “In my
opinion, if this effort fails, the state should just then consider a state funded public defender
system.”
A respondent’s concerns about distrust of the state government as it relates to funding
captures a concern that was present throughout multiple questions in the survey:
This county has worked exceptionally hard over the course of the last few years to stay
solvent through the recession. We have an extremely low tax base and do not have
significant revenues streaming to the county. Employees have not been kept up with the
cola - despite the efforts of the county to stay in the black. The County has felt many
issues being forced on them to address that will cost dollars, and they do not always see
the dollars return from the state.

There is a lot of distrust from state to county. There is

84

lack of trust that the state will make the county whole with the implementation of the
project. If they do initially, at what point does it become the county's responsibility to
assume the full cost.
Lastly, a commentary on lack of communication and the problems that can result was captured:
I truly wish there was a requirement to involve the local judiciary in this process. Our
already stressed bench will be required to do more, take more time and lengthen an
already tight docket to accommodate some of these changes which by and large will only
better a small percentage of our caseload. For example, while it would be helpful to a
Defendant charged with a severe felony to have an attorney at arraignment, for those with
a misdemeanor it will cost time and money for someone who would likely be released on
a PR bond anyway. So why would an attorney be needed for that type of case? Judicial
input is critical and is not happening in many jurisdictions. Communication is a critical
piece to implementing change!

85

CHAPTER 6: DISCUSSION

Implementing reform in any situation can bring its own unique challenges, and the
criminal indigent defense systems across the State of Michigan are no exception. The MIDC’s
first set of minimum standards are set to address basic—yet fundamental—shortcomings in the
standardization of criminal indigent defense (please see Appendix C for the full text of the first
set of minimum standards). Ensuring that attorneys are properly trained, that defendants have
access to legal counsel during their first appearance in court, and that there is a place for
attorneys and clients to meet and speak confidentially are all necessary elements for a fair
criminal justice system, but these basic elements are costly to implement in some communities.
Court administrators and chief judges were surveyed across all of Michigan’s counties to gauge
the response to the new minimum standards. There was no difference between how court
administrators and chief judges responded to the minimum standards—perhaps because both are
involved in the compliance plans and may need to work together as a team on this, and it can be
argued that they are equally affected by issues of indigent defense. In some cases, court
administrators were taking a lead role on compliance plans while in other cases, chief judges
were taking a lead role.
While there is variation across counties in terms of which responsibilities belong to court
administrators and which belong to chief judges, the responses did not vary according to one’s
position, what type of court they worked in, or how long they held the position. With the
exception of some respondents from rural counties commenting on the difficulty of finding
qualified attorneys and implementing these new minimum standards in a rural setting, there were
no differences between the type of county (for example, size of population or location) in terms

86

of answers to survey questions. A comparison across district, circuit, and combined district and
circuit courts did not reveal any meaningful correlations. While some respondents were
skeptical of the reform, most respondents were positive about the new minimum standards
(although they were concerned about the cost of the reforms).
Overall Response
The overall response to the minimum standards was positive and supportive across the
majority of counties. Although a minority of respondents were not supportive of the reforms and
described the reforms as burdensome, most respondents discussed the need for the reforms and
discussed the positive outcomes—such as higher quality legal representation—of the reforms.
Understandably, there were many concerns voiced over the funding issue, and in a fewer—yet
sizable—number of cases, concerns were voiced about logistics and slowing down the court
processes. It was interesting that regardless of the position of the respondent or the county, there
was an overall consensus that the minimum standards were necessary and a move in the right
direction. Additionally, funding was a concern across Michigan.
Funding
While the responses were overall positive, a number of concerns were raised by both
court administrators and chief judges. The most frequent concern across counties was funding.
It appears there is concern that the state government will not provide funding in order to
implement these new minimum standards. Several respondents specifically wrote that they did
not trust the state to come through with the funding, and that this financial burden on the counties
was not sustainable.

87

First Appearance
Concerns over requiring counsel at first appearance usually revolved around funding,
logistics, and slowing down court processes. Multiple respondents—both court administrators
and chief judges—expressed concern that requiring counsel at first appearance would be
burdensome for a variety of reasons. The most obvious reason is the increased financial cost of
paying attorneys to appear at the first stage. They were also worried about slowing down the
court process, especially when many arraignments were scheduled in one day. Several
respondents wrote about the concern they had that defendants would spend more time in jail,
awaiting arraignment until an attorney was available. The logistics of ensuring attorneys were
available during the first appearance was discussed across the survey.
Issues for Rural Counties
Several court administrators and chief judges from rural counties expressed specific
concerns about having the resources and access to qualified attorneys in their county that they
would need in order to comply with the minimum standards. One respondent discussed how
reforms such as these are often geared towards urban areas, and that they do not take into
account the special circumstances in rural counties. It makes sense that reform that is created at
the state level does not take into account the specific challenges of rural communities that are
isolated, have a limited population, and have difficulty in recruiting some professionals—such as
qualified defense attorneys. Additionally, court actors in rural areas may not have as much
experience in different areas of law as there are fewer individuals and fewer incidents that
require court intervention. In dealing with rural counties, it is particularly important to involve
stakeholders from rural counties in order to benefit from diverse perspectives in planning for
reforms. Additionally, perhaps a regional solution may be the key in areas that have a very low

88

population. One respondent indicated that their county is exploring creating a regional public
defender’s office across several counties in order to serve the needs of criminal indigent
defendants and to be in compliance with the new minimum standards. Such a solution could be
particularly useful in low-populated counties that struggle to obtain the resources they need to be
in compliance.
If the counties that are considering a regional public defender’s office are successful in
pooling their resources and coordinating quality criminal indigent defense for all of the counties
involved in the regional office, rural counties can use their model to create their own regional
office. One respondent suggested that if this reform effort does not succeed, the state should
consider a state-wide public defender’s office as a potential solution.
Different Perspectives
While the overall response to the minimum standards was positive, and the majority of
those that responded to the survey were supportive of the need for reform, there was a minority
opinion shared by some that the reform would either not impact their jurisdiction or impact their
jurisdiction in a negligible way. Another minority opinion was that the reforms were
unnecessary and that the system was not broken. In these few cases, respondents wrote that
while other counties may need the reform, their county did not need it, and that the reforms were
unnecessary.
Roles
“The basic premise of role theory is that individuals act differently within their
institutional context than they do when acting in relative isolation…[t]hus, a judicial actor’s role
is a pattern of behavior that is determined by his expectations, the normative expectations that
others have for him, and other factors which inform the actor’s conception of his function in the

89

judicial system” (Smith, 1990). The context of these reforms has implications for the chief
judges and court administrators that are charged with implementation of the new minimum
standards. Because these key stakeholders must work together in their courts to implement
reform, and must work within a system in which they are concerned about funding and may not
be completely sure of their specific role in this process, they are at a disadvantage in terms of
successfully implementing this reform. More communication with state leaders is necessary—
and perhaps more resources to facilitate these changes could positively impact the chief judges
and court administrators that now have an increased workload and burden (even if they are
supportive of the new reform). While many respondents indicated that they would be involved
in the creation of the compliance plans for their jurisdiction, there was also some confusion about
what their roles would look like. While some respondents answered that they did not know at
this time, others simply stated that they would hold a leadership or advisory role. Since counties
are currently in the process of creating compliance plans, it may simply be too early to tell what
specific roles chief judges and court administrators will play. Despite a lack of specificity, the
majority of respondents indicated that they would be involved and that they were supportive of
creating the plans, even if their exact roles had not been defined yet. This is an area of interest
that would benefit from follow-up studies in the future in order to understand how these key
players understand and shape their roles during the challenges of reform implementation.
Implementation Facilitators and Barriers
Implementation barriers—such as lack of knowledge, confusion, and lack of support—
are tied to the failure of reform in organizations (Adler, 2007; Andrews & Bonta, 2010; Berman,
1978; Casper & Brereton, 1984; DeLeon & DeLeon, 2002; Feeley, 1983; Harland & Harris,
1987; Hill, 2003; McGarrell, Rivera, & Patton, 1990). In order to successfully implement

90

reform, key stakeholders must be knowledgeable and supportive of the reforms (Fixsen, Naoom,
Blase, Friedman, & Wallace, 2005). Fortunately, this exploratory study revealed that while there
is some skepticism that the state will provide the necessary funding, the majority of chief judges
and court administrators in this sample are familiar with the new minimum standards and are
supportive of these changes. Having the support of key stakeholders helps facilitate successful
reform implementation, and gaining insight into the concerns of these stakeholders can help
ensure that problem areas are addressed (Fixsen, Naoom, Blase, Friedman, & Wallace, 2005).
While it is positive that chief judges and court administrators are mainly supportive, it is
important to understand and address the skepticism that the state government will provide
funding for these reforms. Respondents cited their previous experience of a lack of state support
and funding for local reforms as part of the basis for this skepticism. Knowing this, state leaders
can address these concerns in order to help ensure that reform is successful. Additionally, there
is some confusion about the specific roles that chief judges and court administrators will play. It
is early in the reform process, so there is time to correct this confusion, but it is important that it
is addressed quickly.
Alongside this confusion is a general concern about the logistics. Having counsel at first
appearance was a concern that was raised throughout the responses of the qualitative portion of
the survey. Their concern included finding the extra funding that would be necessary to enforce
this reform, as well as concern for finding qualified and willing attorneys to help fill this gap.
Some respondents were concerned about travel time and about defendants spending extra time in
jail, awaiting qualified counsel. Clearly these are issues that must be addressed. The confusion,
lack of funding, and lack of understanding of their roles are all barriers to successful
implementation. Support of key stakeholders is tied to successful reform implementation

91

(Ramarapu, Mehra, & Frolick, 1995; Salanova, Cifre, & Martin, 2004; Small & Yasin, 2000).
Previous research indicates that successful reform implementation requires that the details of the
reform must be clear and specific (Bauman, Stein, & Ireys, 1991; Dale, Baker, & Racine, 2002;
Winter & Szulanski, 2001), and this study revealed that currently, the details of the specific roles
that stakeholders are supposed to play are missing. In order to increase implementation
facilitators and increase the likelihood of success, it is important that the support of key
stakeholders is leveraged to help define specific roles and decrease the confusion and lack of
understanding that are currently barriers to successful implementation.

92

CHAPTER 7: CONCLUSION

This exploratory study sought to understand the responses of key stakeholders—chief
judges and court administrators—to the reform of criminal indigent defense systems across
Michigan. Since chief judges and court administrators will be leaders in implementing the new
minimum standards in their jurisdictions, it was interesting to learn of their responses and
perceptions of this new reform. There were sixty-two responses to the survey, and chief judges
and court administrators from thirty-three different counties responded. Approximately half of
the respondents were chief judges (N=26) and half were court administrators (N=31), which did
provide for a fair comparison between the two positions in this study.
It was encouraging to find that the majority of respondents supported the new reform and
felt that it would improve criminal indigent defense in Michigan. It is possible that in order to
make the transition of reform implementation more successful, state leaders must work with
county leaders in building trust. A lack of trust was cited several times as a reason for why some
respondents were skeptical of the new minimum standards. The very changes that would
improve criminal indigent defense are the ones that will require more funding, and since counties
cannot afford to provide the extra funding, it is imperative that the state follows through with
funding. There was also a bit of confusion about who would be overseeing the minimum
standards across the jurisdictions. At this time, the key players—court administrators and chief
judges—are not always clear on their specific role in the process. It will be interesting to see
over time if state funding does come through, and if it does, how the new minimum standards
will impact criminal indigent defense across Michigan.

93

Policy Recommendations
For states that are planning indigent defense reform, it is crucial for those in charge of
reform design and implementation to consider that support from key stakeholders is not enough
to successfully implement reform. Although this study was conducted in the early stages of
reform implementation, it is important to note that there was a lot of confusion surrounding
individual roles. Both chief judges and court administrators across different courts and rural and
urban counties were not clear on their role in reform implementation. Without this clarity, there
are significant challenges in terms of accomplishing successful reform implementation. In
addition to building trust and providing funding, it is important that the state increases
communication and ensures that stakeholders fully understand their role in reform
implementation. For other states that are considering reform implementation in their courts,
those involved in reform must take time to communicate effectively with stakeholders about
their specific roles.
Limitations of the Study
This study was conducted at the very beginning stages of reform implementation in
Michigan. As a result, there is much that cannot be known with certainty; especially since the
compliance plans are still being formulated during the time of this writing. Some of the
respondents wrote that they were unsure or did not know how to respond to the open-ended
questions in the survey because it is too early in the process to know what will happen in terms
of implementation.
Considering the exploratory nature of this study, it is difficult to account for all factors
that may influence the discretionary decision-making of court actors as they seek to implement
this new reform. Honesty is an important component in each study, and considering that public

94

servants were surveyed about new reform, ensuring honesty can be considered a limitation. In
order to encourage participants to be honest in their responses to the survey questions, anonymity
was guaranteed to respondents. The use of SurveyMonkey guarantees anonymous responses as
the settings can ensure that the researcher does not receive any identifying information, only the
responses of each participant. It is impossible to know for sure if those that responded to the
survey were being fully honest, but the survey was designed to encourage honesty through
providing an anonymous, online setting for the survey. Additionally, as the survey is voluntary
and the responses were overall positive, it is possible that respondents were those that selfselected because they were interested in criminal indigent defense and the current reforms in
their jurisdiction. It is possible that the overall positive responses that were in the survey are at
least, in part, a result of self-selection (although everyone had an opportunity and was
encouraged to participate in the study).
Generalizability is an issue in the study. As the survey focused specifically on
Michigan’s counties at the beginning of this reform implementation, the results cannot be
generalized to other states or other types of reform implementation. However, some of the
responses, such as concerns over funding and lack of trust between the counties and the states,
are likely concerns that occur in other reform settings, and there is insight that helps illustrate the
importance of understanding key stakeholders’ perspectives in reform implementation.
Future Research
Future research should follow up on the progress of the reform implementation in
Michigan’s counties. As this study was conducted at the very initial stages of reform
implementation, there is still much to learn. It will be very interesting to see how the reform
unfolds and how counties cope with the issues that they raised in the survey responses—

95

particularly those in terms of funding and accommodating attorneys at the first appearance in
court. Several respondents indicated that their entire system of providing criminal indigent
defense would be changing in order to accommodate these new minimum standards. In each
case, the respondent indicated that the county was exploring—or had decided upon—creating a
public defender’s office. In order to see the changes and responses to reform, it is important to
periodically survey those in charge of reform implementation—court administrators and chief
judges across the State of Michigan. Surveying these key actors every few years to follow this
reform implementation in action would yield useful information and add to the body of
knowledge of criminal indigent defense and reform implementation. Similarly, it would be
interesting to expand this research by surveying other key actors both in the State of Michigan
and in other states that are in the process of reform implementation for their criminal indigent
defense systems.
As this study was exploratory, there is still much to learn about reform implementation
across the criminal indigent defense systems in Michigan. Not only would it be helpful to follow
up and continue to survey chief judges and court administrators in the years to come, it would
also be interesting to have in-depth interviews on this subject in order to gain a deeper
understanding of reform implementation in action.

96

APPENDICES

97

Appendix A: Survey Instrument

1. What county or counties do you work in?
2. What type of court do you work in?
(a) district
(b) circuit
(c) both district and circuit
(d) other (please specify)
3. What is the approximate population of your jurisdiction?
4. What is your position?
(a) chief judge
(b) court administrator
(c) other (please specify)
5. How long have you held this position?
6. What types of indigent defense systems are used in your court? Please include the means by
which conflict cases are handled as well.
(a) assigned counsel
(b) contract
(c) public defender program
(d) mixture of assigned counsel and contract
(e) mixture of public defender and assigned counsel
(f) mixture of contract and public defender
(g) all of the above
(h) I do not know
7. Defendants represented by private defense counsel generally receive better legal
representation than defendants represented by public defenders.
(a) strongly disagree
(b) disagree
(c) neutral
(d) agree
(e) strongly agree
8. Indigent defense in my jurisdiction is sufficiently funded.
(a) strongly disagree
(b) disagree
(c) neutral
(d) agree
(e) strongly agree

98

9. I am familiar with the new Michigan Indigent Defense Commission minimum standards.
(a) strongly disagree
(b) disagree
(c) neutral
(d) agree
(e) strongly agree
10. Indigent defense reform was necessary in Michigan.
(a) strongly disagree
(b) disagree
(c) neutral
(d) agree
(e) strongly agree
11. In what ways do you believe the minimum standards will change indigent defense in your
jurisdiction?
12). How will the new minimum standards impact the current models through which indigent
defense is delivered in your jurisdiction, if at all?
13). Will you be involved in creating the compliance plan?
14). If yes, what do you anticipate your role will be in creating the compliance plan?
15). What will be the role of MIDC personnel in creating the compliance plan in your
community?
16). Who is responsible for overseeing the minimum standards in your jurisdiction?
17). How do you anticipate the responsibilities of chief judges changing in response to the
minimum standards?
18). How do you anticipate the responsibilities of court administrators changing in response to
the minimum standards?
19).What are your thoughts on the changes that these minimum standards may bring to your
jurisdiction?
20). What challenges do you anticipate in implementing the Michigan Indigent Defense
Commission’s first set of minimum standards in your jurisdiction?
21). Please provide any additional insight on the response to the minimum standards in your
jurisdiction that has not been covered elsewhere in the survey.

99

Appendix B: Enclosure Letter
March 8, 2017
Dear Chief Judge or Court Administrator,
I am a doctoral candidate at Michigan State University in the School of Criminal Justice. I am
undertaking a study of Chief Judges’ responses to the new minimum standards for criminal
indigent defense in the State of Michigan. The survey is in no way affiliated with the Michigan
Indigent Defense Commission (MIDC).
You are being asked to provide your opinion in a brief survey about criminal indigent defense
and this new reform in Michigan. Your answers are anonymous so I will not have any way to
identify your responses. I will also be happy to share my final report with you. The survey
should take approximately 10 to 15 minutes.
If possible, please make sure that both Chief Judges and Court Administrators in your
jurisdiction fill out the survey.
Participation in this research project is completely voluntary. You have the right to say no. You
may change your mind at any time and withdraw. You may choose not to answer specific
questions or to stop participating at any time. You indicate your voluntary agreement to
participate by beginning this anonymous online survey by clicking on the SurveyMonkey link
below.
https://www.surveymonkey.com/r/CriminalIndigentDefenseReform
If you have concerns or questions about this study, please contact me at:
Ksenia Petlakh
School of Criminal Justice
College of Social Science
Michigan State University
655 Auditorium Road, Baker Hall, East Lansing, MI 48824
petlakhk@msu.edu

If you have questions or concerns about your role and rights as a research participant, would like
to obtain information or offer input, or would like to register a complaint about this study, you
may contact, anonymously if you wish, the Michigan State University’s Human Research

100

Protection Program at (517)-355-2180, Fax (517)-432-4503, or e-mail irb@msu.edu or regular
mail at Olds Hall, 408 West Circle Dr Rm 207, East Lansing, MI 48824.
Thank you so much for your time and consideration.
Respectfully,

Ksenia Petlakh

101

Appendix C: Full Text of The First Set of Minimum Standards from MIDC

Standard 1:
Education and Training of Defense Counsel
The MIDC Act requires adherence to the principle that “[d]efense counsel is required to attend
continuing legal education relevant to counsel’s indigent defense clients.” MCL 780.991(2)(e).
The United States Supreme Court has held that the constitutional right to counsel guaranteed by
the Sixth Amendment includes the right to the effective assistance of counsel. The mere presence
of a lawyer at a trial “is not enough to satisfy the constitutional command.” Strickland v
Washington, 466 US 668, 685; 104 S Ct 2052, 2063; 80 L Ed 2d 674 (1984). Further, the Ninth
Principle of The American Bar Association’s Ten Principles of a Public Defense Delivery
System provides that a public defense system, in order to provide effective assistance of counsel,
must ensure that “Defense counsel is provided with and required to attend continuing legal
education.”
The MIDC proposed a minimum standard for the education and training of defense counsel. The
version conditionally approved by the Court is as follows:
A. Knowledge of the law.
Counsel shall have reasonable knowledge of substantive Michigan and federal law, constitutional
law, criminal law, criminal procedure, rules of evidence, ethical rules and local practices.
Counsel has a continuing obligation to have reasonable knowledge of the changes and
developments in the law. “Reasonable knowledge” as used in this standard means knowledge of
which a lawyer competent under MRPC 1.1 would be aware.
B. Knowledge of scientific evidence and applicable defenses.
Counsel shall have reasonable knowledge of the forensic and scientific issues that can arise in a
criminal case, the legal issues concerning defenses to a crime, and be reasonably able to
effectively litigate those issues.
C. Knowledge of technology.
Counsel shall be reasonably able to use office technology commonly used in the legal
community, and technology used within the applicable court system. Counsel shall be reasonably
able to thoroughly review materials that are provided in an electronic format.
D. Continuing education.
Counsel shall annually complete continuing legal education courses relevant to the
representation of the criminally accused. Counsel shall participate in skills training and
102

educational programs in order to maintain and enhance overall preparation, oral and written
advocacy, and litigation and negotiation skills. Lawyers can discharge this obligation for annual
continuing legal education by attending local trainings or statewide conferences. Attorneys with
fewer than two years of experience practicing criminal defense in Michigan shall participate in
one basic skills acquisition class. All attorneys shall annually complete at least twelve hours of
continuing legal education. Training shall be funded through compliance plans submitted by the
local delivery system or other mechanism that does not place a financial burden on assigned
counsel. The MIDC shall collect or direct the collection of data regarding the number of hours of
continuing legal education offered to and attended by assigned counsel, shall analyze the quality
of the training, and shall ensure that the effectiveness of the training be measurable and
validated. A report regarding these data shall be submitted to the Court annually by April 1 for
the previous calendar year.
Comment:
The minimum of twelve hours of training represents typical national and some local county
requirements, and is accessible in existing programs offered statewide.
Standard 2:
Initial Interview
The MIDC Act requires adherence to the principle that “[d]efense counsel is provided sufficient
time and a space where attorney-client confidentiality is safeguarded for meetings with defense
counsel’s client.” MCL 780.991(2)(a). United States Supreme Court precedent and American
Bar Association Principles recognize that the “lack of time for adequate preparation and the lack
of privacy for attorney-client consultation” can preclude “any lawyer from providing effective
advice.” See United States v Morris, 470 F3d 596, 602 (CA 6, 2006) (citing United States v
Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984)). Further, the Fourth Principle of
The American Bar Association’s Ten Principles of a Public Defense Delivery System provides
that a public defense system, in order to provide effective assistance of counsel, must ensure that
“Defense counsel is provided sufficient time and a confidential space within which to meet with
the client.”
The MIDC proposed a minimum standard for the initial client interview. The version
conditionally approved by the Court is as follows:
A. Timing and Purpose of the Interview:
Counsel shall conduct a client interview as soon as practicable after appointment to represent the
defendant in order to obtain information necessary to provide quality representation at the early
stages of the case and to provide the client with information concerning counsel’s representation
and the case proceedings. The purpose of the initial interview is to: (1) establish the best possible
relationship with the indigent client; (2) review charges; (3) determine whether a motion for
pretrial release is appropriate; (4) determine the need to start-up any immediate investigations;
(5) determine any immediate mental or physical health needs or need for foreign language
interpreter assistance; and (6) advise that clients should not discuss the circumstances of the
103

arrest or allegations with cellmates, law enforcement, family or anybody else without counsel
present. Counsel shall conduct subsequent client interviews as needed. Following appointment,
counsel shall conduct the initial interview with the client sufficiently before any subsequent court
proceeding so as to be prepared for that proceeding. When a client is in local custody, counsel
shall conduct an initial client intake interview within three business days after appointment.
When a client is not in custody, counsel shall promptly deliver an introductory communication
so that the client may follow-up and schedule a meeting. If confidential videoconference
facilities are made available for trial attorneys, visits should at least be scheduled within three
business days. If an indigent defendant is in the custody of the Michigan Department of
Corrections (MDOC) or detained in a different county from where the defendant is charged,
counsel should arrange for a confidential client visit in advance of the first pretrial hearing.
B. Setting of the interview:
All client interviews shall be conducted in a private and confidential setting to the extent
reasonably possible. The indigent criminal defense system shall ensure the necessary
accommodations for private discussions between counsel and clients in courthouses, lock-ups,
jails, prisons, detention centers, and other places where clients must confer with counsel.
C. Preparation:
Counsel shall obtain copies of any relevant documents which are available, including copies of
any charging documents, recommendations and reports concerning pretrial release, and
discoverable material.
D. Client status:
1. Counsel shall evaluate whether the client is capable of participation in his/her
representation, understands the charges, and has some basic comprehension of criminal
procedure. Counsel has a continuing responsibility to evaluate, and, where appropriate, raise
as an issue for the court the client’s capacity to stand trial or to enter a plea pursuant to
MCR 6.125 and MCL 330.2020. Counsel shall take appropriate action where there are any
questions about a client’s competency.
2. Where counsel is unable to communicate with the client because of language or
communication differences, counsel shall take whatever steps are necessary to fully explain
the proceedings in a language or form of communication the client can understand. Steps
include seeking the appointment of an interpreter to assist with pretrial preparation,
interviews, investigation, and in‐ court proceedings, or other accommodations pursuant to
MCR. 1.111.
Comments:
1. The MIDC recognizes that counsel cannot ensure communication prior to court with an out
of custody indigent client. For out of custody clients the standard instead requires the
attorney to notify clients of the need for a prompt interview.

104

2. The requirement of a meeting within three business days is typical of national requirements
(Florida Performance Guidelines suggest 72 hours; in Massachusetts, the Committee for
Public Counsel Services Assigned Counsel Manual requires a visit within three business
days for custody clients; the Supreme Court of Nevada issued a performance standard
requiring an initial interview within 72 hours of appointment).
3. Certain indigent criminal defense systems only pay counsel for limited client visits in
custody. In these jurisdictions, compliance plans with this standard will need to guarantee
funding for multiple visits.
4. In certain systems, counsel is not immediately notified of appointments to represent indigent
clients. In these jurisdictions, compliance plans must resolve any issues with the failure to
provide timely notification.
5. Some jurisdictions do not have discovery prepared for trial counsel within three business
days. The MIDC expects that this minimum standard can be used to push for local reforms
to immediately provide electronic discovery upon appointment.
6. The three-business-day requirement is specific to clients in “local” custody because some
indigent defendants are in the custody of the Michigan Department of Corrections (MDOC)
while other defendants might be in jail in a different county from the charging offense.
7. In jurisdictions with a large client population in MDOC custody or rural jurisdictions
requiring distant client visits compliance plans might provide for visits through confidential
videoconferencing.
8. Systems without adequate settings for confidential visits for either in-custody or out-of
custody clients will need compliance plans to create this space.
9. This standard only involves the initial client interview. Other confidential client
interviews are expected, as necessary.

Standard 3:
Investigation and Experts
The United States Supreme Court has held: (1) “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland v Washington, 466 US 668, 691; 104 S Ct 2052, 2066; 80 L Ed 2d 674
(1984); and (2) “[c]riminal cases will arise where the only reasonable and available defense
strategy requires consultation with experts or introduction of expert evidence, whether pretrial, at
trial, or both.” Harrington v Richter, 562 US 86, 106; 131 S Ct 770, 788; 178 L Ed 2d 624
(2011). The MIDC Act authorizes “minimum standards for the local delivery of indigent
criminal defense services providing effective assistance of counsel…” MCL 780.985(3).
105

The MIDC proposed a minimum standard for investigations and experts. The version
conditionally approved by the Court is as follows:
A. Counsel shall conduct an independent investigation of the charges and offense as promptly as
practicable.
B. When appropriate, counsel shall request funds to retain an investigator to assist with the
client’s defense. Reasonable requests must be funded.
C. Counsel shall request the assistance of experts where it is reasonably necessary to prepare the
defense and rebut the prosecution’s case. Reasonable requests must be funded as required by
law.
D. Counsel has a continuing duty to evaluate a case for appropriate defense investigations or
expert assistance. Decisions to limit investigation must take into consideration the client’s wishes
and the client’s version of the facts.
Comments:
1. The MIDC recognizes that counsel can make “a reasonable decision that makes particular
investigations unnecessary” after a review of discovery and an interview with the client.
Decisions to limit investigation should not be made merely on the basis of discovery or
representations made by the government.
2. The MIDC emphasizes that a client’s professed desire to plead guilty does not automatically
alleviate the need to investigate.
3. Counsel should inform clients of the progress of investigations pertaining to their case.
4. Expected increased costs from an increase in investigations and expert use will be tackled
in compliance plans.

Standard 4:
Counsel at First Appearance and Other Critical Stages
The MIDC Act provides that standards shall be established to effectuate the following: (1) “All
adults, except those appearing with retained counsel or those who have made an informed waiver
of counsel, shall be screened for eligibility under this act, and counsel shall be assigned as soon
as an indigent adult is determined to be eligible for indigent criminal defense services.” MCL
780.991(1)(c); (2) “A preliminary inquiry regarding, and the determination of, the indigency of
any defendant shall be made by the court not later than at the defendant’s first appearance in
court. MCL 780.991(3)(a); (3) …counsel continuously represents and personally appears at
106

every court appearance throughout the pendency of the case.” MCL 780.991(2)(d)(emphasis
added).
The MIDC proposed a minimum standard on counsel at first appearance and other critical
stages. The version conditionally approved by the Court is as follows:
A. Counsel shall be assigned as soon as the defendant is determined to be eligible for indigent
criminal defense services. The indigency determination shall be made and counsel appointed to
provide assistance to the defendant as soon as the defendant’s liberty is subject to restriction by a
magistrate or judge. Representation includes but is not limited to the arraignment on the
complaint and warrant. Where there are case-specific interim bonds set, counsel at arraignment
shall be prepared to make a de novo argument regarding an appropriate bond regardless of and,
indeed, in the face of, an interim bond set prior to arraignment which has no precedential effect
on bond-setting at arraignment. Nothing in this paragraph shall prevent the defendant from
making an informed waiver of counsel.
B. All persons determined to be eligible for indigent criminal defense services shall also have
appointed counsel at pre-trial proceedings, during plea negotiations and at other critical stages,
whether in court or out of court.
Comments:
1. The proposed standard addresses an indigent defendant’s right to counsel at every court
appearance and is not addressing vertical representation (same defense counsel
continuously represents) which will be the subject of a future minimum standard as
described in MCL 780.991(2)(d).
2. One of several potential compliance plans for this standard may use an on-duty
arraignment attorney to represent defendants. This appointment may be a limited
appearance for arraignment only with subsequent appointment of different counsel for
future proceedings. In this manner, actual indigency determinations may still be made
during the arraignment.
3. Among other duties, lawyering at first appearance should consist of an explanation of the
criminal justice process, advice on what topics to discuss with the judge, a focus on the
potential for pre-trial release, or achieving dispositions outside of the criminal justice
system via civil infraction or dismissal. In rare cases, if an attorney has reviewed discovery
and has an opportunity for a confidential discussion with her client, there may be a criminal
disposition at arraignment.
4. The MIDC anticipates creative and cost-effective compliance plans like representation and
advocacy through videoconferencing or consolidated arraignment schedules between
multiple district courts.
5. This standard does not preclude the setting of interim bonds to allow for the release of incustody defendants. The intent is not to lengthen any jail stays. The MIDC believes that

107

case-specific interim bond determinations should be discouraged. Formal arraignment and
the formal setting of bond should be done as quickly as possible.
6. Any waiver of the right to counsel must be both unequivocal and knowing, intelligent, and
voluntary. People v Anderson, 398 Mich 361; 247 NW2d 857 (1976). The uncounseled
defendant must have sufficient information to make an intelligent choice dependent on a
range of case-specific factors, including his education or sophistication, the complexity or
easily grasped nature of the charge, and the stage of the proceeding.

108

Appendix D: Michigan Indigent Defense Commission Act

Act 93 of 2013
July 1, 2013
780.981 Short title.
Sec. 1.
This act shall be known and may be cited as the “Michigan indigent defense commission act.”
780.983 Definitions.
Sec. 3.
As used in this act:
(a) "Adult" means either of the following:
(i) An individual 17 years of age or older.
(ii) An individual less than 17 years of age at the time of the commission of a felony if any of the
following conditions apply:
(A) During consideration of a petition filed under section 4 of chapter XIIA of the probate code
of 1939, 1939 PA 288, MCL 712A.4, to waive jurisdiction to try the individual as an adult and
upon granting a waiver of jurisdiction.
(B) The prosecuting attorney designates the case under section 2d(1) of chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.2d, as a case in which the juvenile is to be tried
in the same manner as an adult.
(C) During consideration of a request by the prosecuting attorney under section 2d(2) of chapter
XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2d, that the court designate the case
as a case in which the juvenile is to be tried in the same manner as an adult.
(D) The prosecuting attorney authorizes the filing of a complaint and warrant for a specified
juvenile violation under section 1f of chapter IV of the code of criminal procedure, 1927 PA 175,
MCL 764.1f.
(b) "Department" means the department of licensing and regulatory affairs.

109

(c) "Effective assistance of counsel" or "effective representation" means legal representation that
is compliant with standards established by the appellate courts of this state and the United States
supreme court.
(d) "Indigent" means meeting 1 or more of the conditions described in section 11(3).
(e) "Indigent criminal defense services" means local legal defense services provided to a
defendant and to which both of the following conditions apply:
(i) The defendant is being prosecuted or sentenced for a crime for which an individual may be
imprisoned upon conviction, beginning with the defendant's initial appearance in court to answer
to the criminal charge.
(ii) The defendant is determined to be indigent under section 11(3).
(f) Indigent criminal defense services do not include services authorized to be provided under the
appellate defender act, 1978 PA 620, MCL 780.711 to 780.719.
(g) "Indigent criminal defense system" or "system" means either of the following:
(i) The local unit of government that funds a trial court.
(ii) If a trial court is funded by more than 1 local unit of government, those local units of
government, collectively.
(h) "Local share" or "share" means an indigent criminal defense system's average annual
expenditure for indigent criminal defense services in the 3 fiscal years immediately preceding the
creation of the MIDC under this act, excluding money reimbursed to the system by individuals
determined to be partially indigent.
(i) "MIDC" or "commission" means the Michigan indigent defense commission created under
section 5.
780.985 Michigan indigent defense commission; establishment; powers and duties;
functions; carrying forward unexpended funds; delivery of services; minimum standards;
final department action; judicial review; best practices.
Sec. 5.
(1) The Michigan indigent defense commission is established within the department.
(2) The MIDC shall retain as an autonomous entity all statutory authority, powers, duties,
functions, records, personnel, property, unexpended balances of appropriations, allocations, and
other functions, including the functions of budgeting, personnel, locating offices, and other
management functions. 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

110

account that is in compliance with section 451a of the management and budget act, 1984 PA 431,
MCL 18.1451a, for use in the following state fiscal year.
(3) The MIDC shall propose minimum standards for the local delivery of indigent criminal
defense services providing effective assistance of counsel to adults throughout this state. These
minimum standards shall be designed to ensure the provision of indigent criminal defense
services that meet constitutional requirements for effective assistance of counsel. However, these
minimum standards shall not infringe on the supreme court's authority over practice and
procedure in the courts of this state as set forth in section 5 of article VI of the state constitution
of 1963.
(4) The commission shall convene a public hearing before a proposed standard is recommended
to the department. A minimum standard proposed under this subsection shall be submitted to the
department for approval or rejection. Opposition to a proposed minimum standard may be
submitted to the department in a manner prescribed by the department. An indigent criminal
defense system that objects to a recommended minimum standard on the ground that the
recommended minimum standard would exceed the MIDC's statutory authority shall state
specifically how the recommended minimum standard would exceed the MIDC's statutory
authority. A proposed minimum standard is final when it is approved by the department. A
minimum standard that is approved by the department is not subject to challenge through the
appellate procedures in section 15. An approved minimum standard for the local delivery of
indigent criminal defense services within an indigent criminal defense system is not a rule as
defined in section 7 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.207.
(5) Approval of a minimum standard proposed by the MIDC is considered a final department
action subject to judicial review under section 28 of article VI of the state constitution of 1963 to
determine whether the approved minimum standard is authorized by law. Jurisdiction and venue
for judicial review are vested in the court of claims. An indigent criminal defense system may
file a petition for review in the court of claims within 60 days after the date of mailing notice of
the department's final decision on the recommended minimum standard. The filing of a petition
for review does not stay enforcement of an approved minimum standard, but the department may
grant, or the court of claims may order, a stay upon appropriate terms.
(6) The MIDC shall identify and encourage best practices for delivering the effective assistance
of counsel to indigent defendants charged with crimes.
780.987 MIDC; membership; terms; appointment by governor; qualifications; staggered
terms; vacancy; chairperson; compensation; removal; quorum; official action; confidential
case information; exemption from freedom of information act.
Sec. 7.
(1) The MIDC includes 15 voting members and the ex officio member described in subsection
(2). The 15 voting members shall be appointed by the governor for terms of 4 years, except as
provided in subsection (4). Subject to subsection (3), the governor shall appoint members under
this subsection as follows:

111

(a) Two members submitted by the speaker of the house of representatives.
(b) Two members submitted by the senate majority leader.
(c) One member from a list of 3 names submitted by the supreme court chief justice.
(d) Three members from a list of 9 names submitted by the criminal defense attorney association
of Michigan.
(e) One member from a list of 3 names submitted by the Michigan judges association.
(f) One member from a list of 3 names submitted by the Michigan district judges association.
(g) One member from a list of 3 names submitted by the state bar of Michigan.
(h) One member from a list of names submitted by bar associations whose primary mission or
purpose is to advocate for minority interests. Each bar association described in this subdivision
may submit 1 name.
(i) One member from a list of 3 names submitted by the prosecuting attorney's association of
Michigan who is a former county prosecuting attorney or former assistant county prosecuting
attorney.
(j) One member selected to represent the general public.
(k) One member selected to represent local units of government.
(2) The supreme court chief justice or his or her designee shall serve as an ex officio member of
the MIDC without vote.
(3) Individuals nominated for service on the MIDC as provided in subsection (1) shall have
significant experience in the defense or prosecution of criminal proceedings or have
demonstrated a strong commitment to providing effective representation in indigent criminal
defense services. Of the members appointed under this section, the governor shall appoint no
fewer than 2 individuals who are not licensed attorneys. Any individual who receives
compensation from this state or an indigent criminal defense system for providing prosecution of
or representation to indigent adults in state courts is ineligible to serve as a member of the
MIDC. Not more than 3 judges, whether they are former judges or sitting judges, shall serve on
the MIDC at the same time. The governor may reject the names submitted under subsection (1)
and request additional names.
(4) MIDC members shall hold office until their successors are appointed. The terms of the
members shall be staggered. Initially, 4 members shall be appointed for a term of 4 years each, 4
members shall be appointed for a term of 3 years each, 4 members shall be appointed for a term
of 2 years each, and 3 members shall be appointed for a term of 1 year each.

112

(5) The governor shall fill a vacancy occurring in the membership of the MIDC in the same
manner as the original appointment, except if the vacancy is for an appointment described in
subsection (1)(d), the source of the nomination shall submit a list of 3 names for each vacancy.
However, if the senate majority leader or the speaker of the house of representatives is the source
of the nomination, 1 name shall be submitted. If an MIDC member vacates his or her
commission before the end of the member's term, the governor shall fill that vacancy for the
unexpired term only.
(6) The governor shall appoint 1 of the original MIDC members to serve as chairperson of the
MIDC for a term of 1 year. At the expiration of that year, or upon the vacancy in the membership
of the member appointed chairperson, the MIDC shall annually elect a chairperson from its
membership to serve a 1-year term. An MIDC member shall not serve as chairperson of the
MIDC for more than 3 consecutive terms.
(7) MIDC members shall not receive compensation in that capacity but shall be reimbursed for
their reasonable actual and necessary expenses by the state treasurer.
(8) The governor may remove an MIDC member for incompetence, dereliction of duty,
malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
(9) A majority of the MIDC voting members constitute a quorum for the transaction of business
at a meeting of the MIDC. A majority of the MIDC voting members are required for official
action of the commission.
(10) Confidential case information, including, but not limited to, client information and attorney
work product, is exempt from disclosure under the freedom of information act, 1976 PA 442,
MCL 15.231 to 15.246.
780.989 MIDC; authority and duties; establishment of minimum standards, rules, and
procedures; manual.
Sec. 9.
(1) The MIDC has the following authority and duties:
(a) Developing and overseeing 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
consistent with the safeguards of the United States constitution, the state constitution of 1963,
and this act.
(b) Investigating, auditing, and reviewing the operation of indigent criminal defense services to
assure compliance with the commission's minimum standards, rules, and procedures. However,
an indigent criminal defense service that is in compliance with the commission's minimum
standards, rules, and procedures shall not be required to provide indigent criminal defense
services in excess of those standards, rules, and procedures.

113

(c) Hiring an executive director and determining the appropriate number of staff needed to
accomplish the purpose of the MIDC consistent with annual appropriations.
(d) Assigning the executive director the following duties:
(i) Establishing an organizational chart, preparing an annual budget, and hiring, disciplining, and
firing staff.
(ii) Assisting the MIDC in developing, implementing, and regularly reviewing the MIDC's
standards, rules, and procedures, including, but not limited to, recommending to the MIDC
suggested changes to the criteria for an indigent adult's eligibility for receiving criminal trial
defense services under this act.
(e) Establishing procedures for the receipt and resolution of complaints, and the implementation
of recommendations from the courts, other participants in the criminal justice system, clients,
and members of the public.
(f) Establishing procedures for the mandatory collection of data concerning the operation of the
MIDC, each indigent criminal defense system, and the operation of indigent criminal defense
services.
(g) Establishing rules and procedures for indigent criminal defense systems to apply to the MIDC
for grants to bring the system's delivery of indigent criminal defense services into compliance
with the minimum standards established by the MIDC.
(h) Establishing procedures for annually reporting to the governor, legislature, and supreme
court. The report required under this subdivision shall include, but not be limited to,
recommendations for improvements and further legislative action.
(2) Upon the appropriation of sufficient funds, the MIDC shall establish minimum standards to
carry out the purpose of this act, and collect data from all indigent criminal defense systems. The
MIDC shall propose goals for compliance with the minimum standards established under this act
consistent with the metrics established under this section and appropriations by this state.
(3) In establishing and overseeing the minimum standards, rules, and procedures described in
subsection (1), the MIDC shall emphasize the importance of indigent criminal defense services
provided to juveniles under the age of 17 who are tried in the same manner as adults or who may
be sentenced in the same manner as adults and to adults with mental impairments.
(4) The MIDC shall be mindful that defense attorneys who provide indigent criminal defense
services are partners with the prosecution, law enforcement, and the judiciary in the criminal
justice system.
(5) The commission shall establish procedures for the conduct of its affairs and promulgate
policies necessary to carry out its powers and duties under this act.

114

(6) Commission policies shall be placed in an appropriate manual, made publicly available on a
website, and made available to all attorneys and professionals providing indigent criminal
defense services, the supreme court, the governor, the senate majority leader, the speaker of the
house of representatives, the senate and house appropriations committees, and the senate and
house fiscal agencies.
780.991 MIDC; establishment of minimum standards, rules, and procedures; principles;
application for, and appointment of, indigent criminal defense services; requirements.
Sec. 11.
(1) The MIDC shall establish minimum standards, rules, and procedures to effectuate the
following:
(a) The delivery of indigent criminal defense services shall 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, shall be screened for eligibility under this act, and counsel shall 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 shall 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.

115

(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.
(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 for
purposes of this act shall 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. Nothing in this act
shall prevent 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 shall be 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) shall
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 defendant shall be 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 shall be made under oath or an equivalent affirmation.

116

780.993 Investigation, audit, and review of indigent criminal defense services; cooperation
and participation with MIDC; development of plan and cost analysis; award of grant;
submission of plan; annual plan; approval or disapproval of plan and cost analysis by
MIDC; report; maintenance of local share; necessity for excess funding; appropriation of
additional funds; grants to local units of government; compliance with minimum
standards; zero grant; funds received by MIDC as state funds.
Sec. 13.
(1) All indigent criminal defense systems and, at the direction of the supreme court, attorneys
engaged in providing indigent criminal defense services shall cooperate and participate with the
MIDC in the investigation, audit, and review of their indigent criminal defense services.
(2) An indigent criminal defense system may submit to the MIDC an estimate of the cost of
developing the plan and cost analysis for implementing the plan under subsection (3) to the
MIDC for approval. Upon approval, the MIDC shall award the indigent criminal defense system
a grant to pay the approved costs for developing the plan and cost analysis under subsection (3).
(3) No later than 180 days after a standard is approved by the department, each indigent criminal
defense system shall submit a plan to the MIDC for the provision of indigent criminal defense
services in a manner as determined by the MIDC and shall submit an annual plan for the
following state fiscal year on or before February 1 of each year. A plan submitted under this
subsection shall specifically address how the minimum standards established by the MIDC under
this act shall be met and shall include a cost analysis. The standards to be addressed in the annual
plan are those approved not less than 60 days before the annual plan submission date. This cost
analysis shall include a statement of the funds in excess of the local share, if any, necessary to
allow its system to comply with the MIDC's minimum standards.
(4) The MIDC shall approve or disapprove a plan or cost analysis, or both a plan and cost
analysis, submitted under subsection (3), and shall do so within 60 calendar days of the
submission of the plan and cost analysis. If the MIDC disapproves the plan, the cost analysis, or
both the plan and the cost analysis, the indigent criminal defense system shall consult with the
MIDC and submit a new plan, a new cost analysis, or both within 30 calendar days of the
mailing date of the official notification of the MIDC's disapproval. If after 3 submissions a
compromise is not reached, the dispute shall be resolved as provided in section 15.
(5) The MIDC shall submit a report to the governor, the senate majority leader, the speaker of
the house of representatives, and the appropriations committees of the senate and house of
representatives requesting the appropriation of funds necessary to implement the plan for each
system approved by the MIDC. The information used to create this report shall be made
available to the governor, the senate majority leader, the speaker of the house of representatives,
and the appropriations committees of the senate and house of representatives.
(6) Except as provided in subsection (8), an indigent criminal defense system shall maintain not
less than its local share. If the MIDC determines that funding in excess of the indigent criminal
defense system's share is necessary in order to bring its system into compliance with the

117

minimum standards established by the MIDC, that excess funding shall be paid by this state. The
legislature shall appropriate to the MIDC the additional funds necessary for a system to meet and
maintain those minimum standards, which funds shall be provided to indigent criminal defense
systems through grants as described in subsection (7).
(7) An indigent criminal defense system shall not be required to provide funds in excess of its
local share. The MIDC shall provide grants to indigent criminal defense systems to assist in
bringing the systems into compliance with minimum standards established by the MIDC.
(8) An indigent criminal defense system is not required to expend its local share if the minimum
standards established by the MIDC may be met for less than that share, but the local share of a
system that expends less than its local share under these circumstances is not reduced by the
lower expenditure.
(9) This state shall appropriate funds to the MIDC for grants to the local units of government for
the reasonable costs associated with data required to be collected under this act that is over and
above the local unit of government's data costs for other purposes.
(10) Within 180 days after receiving funds from the MIDC under subsection (7), an indigent
criminal defense system shall comply with the terms of the grant in bringing its system into
compliance with the minimum standards established by the MIDC for effective assistance of
counsel.
(11) If an indigent criminal defense system is awarded no funds for implementation of its plan
under this act, the MIDC shall nevertheless issue to the system a zero grant reflecting that it will
receive no grant funds.
(12) The MIDC may apply for and obtain grants from any source to carry out the purposes of this
act. All funds received by MIDC, from any source, are state funds and shall be appropriated as
provided by law.
780.995 Dispute between MIDC and indigent criminal defense system.
Sec. 15.
(1) Except as provided in section 5, if a dispute arises between the MIDC and an indigent
criminal defense system concerning the requirements of this act, including a dispute concerning
the approval of an indigent criminal defense system's plan, cost analysis, or compliance with
section 13 or 17, the parties shall attempt to resolve the dispute by mediation. The state court
administrator, as authorized by the supreme court, shall appoint a mediator agreed to by the
parties within 30 calendar days of the mailing date of the official notification of the third
disapproval by the MIDC under section 13(4) to mediate the dispute and shall facilitate the
mediation process. The MIDC shall immediately send the state court administrative office a copy
of the official notice of that third disapproval. If the parties do not agree on the selection of the
mediator, the state court administrator, as authorized by the supreme court, shall appoint a
mediator of his or her choosing. Mediation shall commence within 30 calendar days after the

118

mediator is appointed and terminate within 60 calendar days of its commencement. Mediation
costs associated with mediation of the dispute shall be paid equally by the parties.
(2) If the parties do not come to a resolution of the dispute during mediation under subsection
(1), all of the following apply:
(a) The mediator may submit his or her recommendation of how the dispute should be resolved
to the MIDC within 30 calendar days of the conclusion of mediation for the MIDC's
consideration.
(b) The MIDC shall consider the recommendation of the mediator, if any, and shall approve a
final plan or the cost analysis, or both, in the manner the MIDC considers appropriate within 30
calendar days, and the indigent criminal defense system shall implement the plan as approved by
the MIDC.
(c) The indigent criminal defense system that is aggrieved by the final plan, cost analysis, or
both, may bring an action seeking equitable relief as described in subsection (3).
(3) The MIDC, or an indigent criminal defense system may bring an action seeking equitable
relief in the circuit court only as follows:
(a) Within 60 days after the MIDC's issuance of an approved plan and cost analysis under
subsection (2)(b).
(b) Within 60 days after the system receives grant funds under section 13(7), if the plan, cost
analysis, or both, required a grant award for implementation of the plan.
(c) Within 30 days of the MIDC's determination that the indigent criminal defense system has
breached its duty to comply with an approved plan.
(d) The action shall be brought in the judicial circuit where the indigent criminal defense service
is located. The state court administrator, as authorized by the supreme court, shall assign an
active or retired judge from a judicial circuit other than the judicial circuit where the action was
filed to hear the case. Costs associated with the assignment of the judge shall be paid equally by
the parties.
(e) The action shall not challenge the validity, legality, or appropriateness of the minimum
standards approved by the department.
(4) If the dispute involves the indigent criminal defense system's plan, cost analysis, or both, the
court may approve, reject, or modify the submitted plan, cost analysis, or the terms of a grant
awarded under section 13(7) other than the amount of the grant, determine whether section 13
has been complied with, and issue any orders necessary to obtain compliance with this act.
However, the system shall not be required to expend more than its local share in complying with
this act.

119

(5) If a party refuses or fails to comply with a previous order of the court, the court may enforce
the previous order through the court's enforcement remedies, including, but not limited to, its
contempt powers, and may order that the state undertake the provision of indigent criminal
defense services in lieu of the indigent criminal defense system.
(6) If the court determines that an indigent criminal defense system has breached its duty under
section 17(1), the court may order the MIDC to provide indigent criminal defense on behalf of
that system.
(7) If the court orders the MIDC to provide indigent criminal defense services on behalf of an
indigent criminal defense system, the court shall order the system to pay the following amount of
the state's costs that the MIDC determines are necessary in order to bring the indigent criminal
defense system into compliance with the minimum standards established by the MIDC:
(a) In the first year, 10% of the state's costs.
(b) In the second year, 20% of the state's costs.
(c) In the third year, 30% of the state's costs.
(d) In the fourth year, 40% of the state's costs.
(e) In the fifth year, and any subsequent year, not more than the dollar amount that was
calculated under subdivision (d).
(8) An indigent criminal defense system may resume providing indigent criminal defense
services at any time as provided under section 13. When a system resumes providing indigent
criminal defense services, it is no longer required to pay an assessment under subsection (7) but
shall be required to pay no less than its share.
780.997 Duty of compliance with approved plan.
Sec. 17.
(1) Except as provided in subsection (2), every local unit of government that is part of an
indigent criminal defense system shall comply with an approved plan under this act.
(2) A system's duty of compliance with the terms of the plan as prescribed under subsection (1)
is contingent upon receipt of a grant in the amount contained in the plan and cost analysis
approved by the MIDC.
(3) The MIDC may proceed under section 15 if an indigent criminal defense system breaches its
duty of compliance under subsection (1).
780.999 Annual report, budget, and listing of expenditures; availability on website.

120

Sec. 19.
The MIDC shall publish and make available to the public on a website its annual report, its
budget, and a listing of all expenditures. Publication and availability of the listing of
expenditures shall be on a quarterly basis, except for the annual report and salary information,
which may be published and made available on an annual basis. As used in this section,
"expenditures" means all payments or disbursements of MIDC funds, received from any source,
made by the MIDC.
780.1001 Applicability of freedom of information act and open meetings act.
Sec. 21.
Both of the following apply to the MIDC:
(a) The freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, except as provided in
section 7(10).
(b) The open meetings act, 1976 PA 267, MCL 15.261 to 15.275.
780.1003 Effect of United States or state supreme court cases; failure to comply with
statutory duties; grounds for reversal or modification of conviction.
Sec. 23.
(1) Nothing in this act shall be construed to overrule, expand, or extend, either directly or by
analogy, any decisions reached by the United States supreme court or the supreme court of this
state regarding the effective assistance of counsel.
(2) Nothing in this act shall be construed to override section 29 or 30 of article IX of the state
constitution of 1963.
(3) Except as otherwise provided in this act, the failure of an indigent criminal defense system to
comply with statutory duties imposed under this act does not create a cause of action against the
government or a system.
(4) Statutory duties imposed that create a higher standard than that imposed by the United States
constitution or the state constitution of 1963 do not create a cause of action against a local unit of
government, an indigent criminal defense system, or this state.
(5) Violations of MIDC rules that do not constitute ineffective assistance of counsel under the
United States constitution or the state constitution of 1963 do not constitute grounds for a
conviction to be reversed or a judgment to be modified for ineffective assistance of counsel.

121

Appendix E: An Act to Amend the Michigan Indigent Defense Commission Act

Act No. 439
Public Acts of 2016
Approved by the Governor
January 4, 2017
Filed with the Secretary of State
January 4, 2017
EFFECTIVE DATE: January 4, 2017
STATE OF MICHIGAN
98TH LEGISLATURE
REGULAR SESSION OF 2016
Introduced by Rep. Heise
ENROLLED HOUSE BILL No. 5842
AN ACT to amend 2013 PA 93, entitled “An act to create the Michigan indigent defense
commission and to provide for its powers and duties; to provide indigent defendants in criminal
cases with effective assistance of counsel; to provide standards for the appointment of legal
counsel; to provide for and limit certain causes of action; and to provide for certain
appropriations and grants,” by amending sections 3, 5, and 11 (MCL 780.983, 780.985, and
780.991).
The People of the State of Michigan enact:
Sec. 3. As used in this act:
(a) “Adult” means either of the following:
(i) An individual 17 years of age or older.
(ii) An individual less than 17 years of age at the time of the commission of a felony if any of the
following conditions apply:

122

(A) During consideration of a petition filed under section 4 of chapter XIIA of the probate code
of 1939, 1939 PA 288, MCL 712A.4, to waive jurisdiction to try the individual as an adult and
upon granting a waiver of jurisdiction.
(B) The prosecuting attorney designates the case under section 2d(1) of chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.2d, as a case in which the juvenile is to be tried
in the same manner as an adult.
(C) During consideration of a request by the prosecuting attorney under section 2d(2) of chapter
XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2d, that the court designate the case
as a case in which the juvenile is to be tried in the same manner as an adult.
(D) The prosecuting attorney authorizes the filing of a complaint and warrant for a specified
juvenile violation under section 1f of chapter IV of the code of criminal procedure, 1927 PA 175,
MCL 764.1f.
(b) “Department” means the department of licensing and regulatory affairs.
(c) “Effective assistance of counsel” or “effective representation” means legal representation that
is compliant with standards established by the appellate courts of this state and the United States
supreme court.
(d) “Indigent” means meeting 1 or more of the conditions described in section 11(3).
(e) “Indigent criminal defense services” means local legal defense services provided to a
defendant and to which both of the following conditions apply:
(i) The defendant is being prosecuted or sentenced for a crime for which an individual may be
imprisoned upon conviction, beginning with the defendant’s initial appearance in court to answer
to the criminal charge.
(ii) The defendant is determined to be indigent under section 11(3).
(f) Indigent criminal defense services do not include services authorized to be provided under the
appellate defender act, 1978 PA 620, MCL 780.711 to 780.719.
(g) “Indigent criminal defense system” or “system” means either of the following:
(i) The local unit of government that funds a trial court.
(ii) If a trial court is funded by more than 1 local unit of government, those local units of
government, collectively.
(h) “Local share” or “share” means an indigent criminal defense system’s average annual
expenditure for indigent criminal defense services in the 3 fiscal years immediately preceding the

123

creation of the MIDC under this act, excluding money reimbursed to the system by individuals
determined to be partially indigent.
(i) “MIDC” or “commission” means the Michigan indigent defense commission created under
section 5.
Sec. 5. (1) The Michigan indigent defense commission is established within the department.
(2) The MIDC shall retain as an autonomous entity all statutory authority, powers, duties,
functions, records, personnel, property, unexpended balances of appropriations, allocations, and
other functions, including the functions of budgeting, personnel, locating offices, and other
management functions. 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 that is in compliance with section 451a of the management and budget act, 1984 PA 431,
MCL 18.1451a, for use in the following state fiscal year.
(3) The MIDC shall propose minimum standards for the local delivery of indigent criminal
defense services providing effective assistance of counsel to adults throughout this state. These
minimum standards shall be designed to ensure the provision of indigent criminal defense
services that meet constitutional requirements for effective assistance of counsel. However, these
minimum standards shall not infringe on the supreme court’s authority over practice and
procedure in the courts of this state as set forth in section 5 of article VI of the state constitution
of 1963.
(4) The commission shall convene a public hearing before a proposed standard is recommended
to the department. A minimum standard proposed under this subsection shall be submitted to the
department for approval or rejection. Opposition to a proposed minimum standard may be
submitted to the department in a manner prescribed by the department. An indigent criminal
defense system that objects to a recommended minimum standard on the ground that the
recommended minimum standard would exceed the MIDC’s statutory authority shall state
specifically how the recommended minimum standard would exceed the MIDC’s statutory
authority. A proposed minimum standard is final when it is approved by the department. A
minimum standard that is approved by the department is not subject to challenge through the
appellate procedures in section 15. An approved minimum standard for the local delivery of
indigent criminal defense services within an indigent criminal defense system is not a rule as
defined in section 7 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.207.
(5) Approval of a minimum standard proposed by the MIDC is considered a final department
action subject to judicial review under section 28 of article VI of the state constitution of 1963 to
determine whether the approved minimum standard is authorized by law. Jurisdiction and venue
for judicial review are vested in the court of claims. An indigent criminal defense system may
file a petition for review in the court of claims within 60 days after the date of mailing notice of
the department’s final decision on the recommended minimum standard. The filing of a petition
for review does not stay enforcement of an approved minimum standard, but the department may
grant, or the court of claims may order, a stay upon appropriate terms.

124

(6) The MIDC shall identify and encourage best practices for delivering the effective assistance
of counsel to indigent defendants charged with crimes.
Sec. 11. (1) The MIDC shall establish minimum standards, rules, and procedures to effectuate
the following:
(a) The delivery of indigent criminal defense services shall 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, shall be screened for eligibility under this act, and counsel shall 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 shall 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.

125

(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 for
purposes of this act shall 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. Nothing in this act
shall prevent 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 shall be 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) shall
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 defendant shall be 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 shall be made under oath or an equivalent affirmation.
Enacting section 1. This amendatory act does not take effect unless all of the following bills of
the 98th Legislature are enacted into law:
(a) House Bill No. 5843.
(b) House Bill No. 5844.

126

(c) House Bill No. 5845.
(d) House Bill No. 5846.
This act is ordered to take immediate effect.

127

REFERENCES

128

REFERENCES

Adler, R. (2007). Enforcing the Right to Counsel: Can the Courts Do It-The Failure of Systemic
Reform Litigation. JIJIS, 7, 59.
Aladjem, D. K., & Borman, K. M. (2006). Examining comprehensive school reform. The Urban
Institute.
Albonetti, C. A. (1986). Criminality, prosecutorial screening, and uncertainty: Toward a theory
of discretionary decision making in felony case processings. Criminology, 24(4), 623
644.
Albonetti, C. (1991). An integration of theories to explain judicial discretion. Social Problems,
38(2): 247-266.
Anderson, H. R. (2011). Funding Gideon's Promise by Viewing Excessive Caseloads as
Unethical Conflicts of Interest. Hastings Const. LQ, 39, 421.
Anderson IV, R. (2012). Law, fact, and discretion in the federal courts: an empirical study. Utah
L. Rev., 1.
Anderson, J. M., & Heaton, P. (2012). How much difference does the lawyer make: The effect of
defense counsel on murder case outcomes. Yale LJ,122, 154.
Andrews, D. A., & Bonta, J. (2010). Rehabilitating criminal justice policy and
practice. Psychology, Public Policy, and Law, 16(1), 39.
Bailey, M. A., & Maltzman, F. (2011). The constrained court: law, politics, and the decisions
justices make. Princeton University Press.
Baum, L. (2006). Judges and their audiences: a perspective on judicial behavior. Princeton
University Press.
Baum, L. (2009)(1997). The puzzle of judicial behavior. University of Michigan Press.
Bauman, L. J., Stein, R. E. K., & Ireys, H. T. (1991). Reinventing fidelity: The transfer of social
technology among settings. American Journal of Community Psychology, 19, 619-639.
Benner, L. A. (1974). Tokenism and the American Indigent: Some perspectives on defense
services. Am. Crim. L. Rev., 12, 667.
Berman, P. (1978). The study of macro- and micro-implementation. Public Policy, 26, 157-184.
Burke, W. W. (2013). Organization change: Theory and practice. Sage Publications.

129

Brown, D. K. (2010). Epiphenomenal Indigent Defense. Mo. L. Rev., 75, 907.
Callahan, L., Cocozza, J., Steadman, H. J., & Tillman, S. (2012). A national survey of US
juvenile mental health courts. Psychiatric services, 63(2), 130-134.
Casper, J. D., & Brereton, D. (1984). Evaluating criminal justice reforms. Law and Society
Review, 18(1), 121–144.
Chen, H. H. (1996). Malpractice Immunity: An Illegitimate and Ineffective Response to the
Indigent-Defense Crisis. Duke Law Journal, 45(4), 783-818.
Chiang, E. (2010). Indigent Defense Invigorated: A Uniform Standard for Adjudicating Pre
Conviction Sixth Amendment Claims. Temple Political & Civil Rights Law Review, 19,
443.
Chin, G. J. (2011). Making Padilla Practical: Defense Counsel and Collateral Consequences at
Guilty Plea. Howard Law Journal, 54, 675.
Citron, R. (1991). (Un) Luckey v. Miller: The Case for a Structural Injunction to Improve
Indigent Defense Services. The Yale Law Journal, 101(2), 481-504.
Cornwell, E. Y. (2015). The trials of indigent defense: Type of counsel and case outcomes in
felony jury trials. Albany Law Review, 78(3), 1239.
Dale, N., Baker, A. J. L., & Racine, D. (2002). Lessons Learned: What the WAY Program Can
Teach Us About Program Replication. Washington, DC: American Youth Policy Forum.
Davies, A. L. B., & Worden, A. P. (2009). State politics and the right to counsel: A comparative
analysis. Law & Society Review, 43(1), 187-220.
DeLeon, P., & DeLeon, L. (2002). What Ever Happened to Policy Implementation? An
Alternative Approach. Journal of Public Administration Research and Theory: J
PART, 12(4), 467-492.
Dillman, D. A. (1991). The design and administration of mail surveys. Annual review of
sociology, 225-249.
Drinan, C. H. (2009). The Third Generation of Indigent Defense Litigation. NYU Review of Law
& Social Change, 33, 427.
Drinan, C. H. (2010). The National Right to Counsel Act: A Congressional Solution to the
Nation's Indigent Defense Crisis. Harvard Journal of Legislation, 47, 487.
Drinan, C. H. (2012). Lafler and Frye: Good News for Public Defense Litigation. Federal
Sentencing Reporter, 25(2), 138-140.

130

Eisenstein, J., Flemming, R. B., & Nardulli, P. F. (1988). The contours of justice: Communities
and their courts. Boston, MA: Little, Brown.
Epstein, L., & Knight, J. (1997). The choices justices make. Sage.
Epstein, L., & Kobylka, J.F. (1992). The Supreme Court and legal change: Abortion and the
death penalty. Univ of North Carolina Press.
Everett, E. V. (2004). Salvation Lies Within: Why the Mississippi Supreme Court Can and
Should Step In to Solve Mississippi's Indigent Defense Crisis. Miss. LJ, 74, 213.
Feeley, M. M. (1973). Two models of the criminal justice system: an organizational
perspective. Law and Society Review, 407-425.
Feeley, M. M. (1983). Court reform on trial: Why simple solutions fail. New York: Basic Books.
Felice, D. A. (2000). Justice Rationed: A Look at Alabama's Present Indigent Defense System
with a Vision Towards Change. Ala. L. Rev., 52, 975.
Fischman, J. B., & Schanzenbach, M. M. (2012). Racial disparities under the federal sentencing
guidelines: The role of judicial discretion and mandatory minimums. Journal of
Empirical Legal Studies, 9(4), 729-764.
Fixsen, D. L., Blase, K. A., Timbers, G. D., & Wolf, M. M. (2001). In search of program
implementation: 792 replications of the Teaching-Family Model. In G. A. Bernfeld, D. P.
Farrington & A. W. Leschied (Eds.), Offender rehabilitation in practice: Implementing
and evaluating effective programs (pp. 149-166). London: Wiley.
Fixsen, D., Naoom, S., Blase, K., Friedman, R., & Wallace, F. (2005). Implementation Research:
A Synthesis of the Literature. Tamps, FL: University of South Florida, Louis de la Parte
Florida Mental Health Institute, National Implementation Research Network.
Frederique, N., Joseph, P., & Hild, R. C. C. (2014). What Is the State of Empirical Research on
Indigent Defense Nationwide: A Brief Overview and Suggestions for Future
Research. Alb. L. Rev., 78, 1317.
Galanter, M. (1974). Why the" haves" come out ahead: Speculations on the limits of legal
change. Law and Society Review, 95-160.
Gershowitz, A. M. (2007). Raise the Proof: A Default Rule for Indigent Defense. Conn. L.
Rev., 40, 85.
Green, B. A. (2003). Criminal Neglect: Indigent Defense from a Legal Ethics Perspective. Emory
LJ, 52, 1169.

131

Harland, A. T., & Harris, P. W. (1987). Structuring the development of alternatives to
incarceration. In S. D. Gottfredson, & S. McConnville (Eds.), America’s correctional
crisis (pp. 179–195). New York: Greenwood.
Hessick, F. A., & Saujani, R. (2002). Plea bargaining and convicting the innocent: The role of
the prosecutor, the defense counsel, and the judge. Brigham Young University Journal of
Public Law, 16, 189.
Hill, H. C. (2003). Understanding Implementation: Street‐Level Bureaucrats' Resources for
Reform. Journal of Public Administration Research and Theory, 13(3), 265-282.
Houlden, P., & Balkin, S. (1985). Quality and cost comparisons of private bar indigent defense
systems: contract vs. ordered assigned counsel. The Journal of Criminal Law and
Criminology (1973-), 76(1), 176-200.
Jacobs, C. F., & Smith, C. E. (2011). Influence of Justice John Paul Stevens: Opinion
Assignments by the Senior Associate Justice, The. Santa Clara L. Rev., 51, 743.
Jacoby, J. (1980). The American Prosecutor: A Search for Identity. Lexington, MA: Lexington.
Jenkins, C. R., & Dillman, D. A. (1995). Towards a theory of self-administered questionnaire
design. Bureau of the Census.
Joyce, B. R., & Showers, B. (2002). Student achievement through staff development.
Kassin, S. M., Dror, I. E., & Kukucka, J. (2013). The forensic confirmation bias: Problems,
perspectives, and proposed solutions. Journal of Applied Research in Memory and
Cognition, 2(1), 42-52.
Kress, J. M. (1976). Progress and prosecution. Annals of the American Academy of Political and
Social Sciences 423: 99-116.
Kruskal, W. H., & Wallis, W. A. (1952). Use of ranks in one-criterion variance analysis. Journal
of the American Statistical Association, 47(260), 583-621.
Laurin, J. E. (2015). Gideon by the Numbers: The Emergence of Evidence-Based Practice in
Indigent Defense. Ohio State Journal of Criminal Law, Forthcoming.
Leiber, M. J., Peck, J. H., & Rodriguez, N. (2013). Minority threat and juvenile court
outcomes. Crime & Delinquency.
Lemos, M. H. (2000). Civil Challenges to the Use of Low-Bid Contracts for Indigent Defense.
NYUL Rev., 75, 1808.
Leschied, A. W., & Cunningham, A. (2002). Seeking effective interventions for serious young
offenders: Interim results of a four-year randomized study of Multisystemic Therapy in

132

Ontario, Canada. London, Ontario: Centre for Children and Families in the Justice
System.
Lipsky, M. (1980). Street-Level Bureaucracy: Dilemmas of the Individual in Public
Services. New York: Russell Sage
Logan, W. A. (2010). Litigating the Ghost of Gideon in Florida: Separation of Powers as a Tool
to Achieve Indigent Defense Reform. Missouri Law Review, 75, 885.
Lucas, L. S. (2013). Reclaiming Equality to Reframe Indigent Defense Reform. Minnesota Law
Review, 97(4), 1197.
Majd, K., & Puritz, P. (2009). Cost of Justice: How Low-Income Youth Continue to Pay the
Price of Failing Indigent Defense Systems, The. Geo. J. on Poverty L. & Pol'y, 16, 543.
Maltzman, F., Spriggs, J. F., & Wahlbeck, P. J. (2000). Crafting law on the Supreme Court: The
collegial game. Cambridge University Press.
Maynard-Moody, S. W., & Musheno, M. C. (2003). Cops, teachers, counselors: Stories from the
front lines of public service. University of Michigan Press.
McCleary, R. (1978). Dangerous Men: The Sociology of Parole. Beverly Hills, Ca.: Sage
Publications
McGarrell, E.F., Rivera, B. & Patton, J. (1990) Obstacles to seemingly simple reform: A case
study of bail reform. Policy Studies Review, 9(3), 433–443.
Michigan Indigent Defense Commission Act, MCL 780.991(2). (2013).
Michigan Indigent Defense Commission. About MIDC. (n.d.). Retrieved May 3, 2016, from
http://michiganidc.gov/michigan-indigent-defense-commission/
National Legal Aid and Defender Association. (2008). A Race to the Bottom—Speed and Savings
Over Due Process: A Constitutional Crisis. Retrieved from NLADA Website:
http://www.nlada.net/library/documents/mi_racetothebottomjseri06-2008_report
Nickerson, R. S. (1998). Confirmation bias: A ubiquitous phenomenon in many guises. Review
of general psychology, 2(2), 175.
Nord, W. R., & Tucker, S. (1987). The organizational dynamics of implementing
innovation. Implementing Routine and Radical Innovations. Lexington Books, Lexington,
MA, 3-39.
Petersilia, J. (1990). Conditions that permit intensive supervision programs to survive. Crime &
Delinquency, 36(1), 126-145.

133

Pruitt, L. R., & Colgan, B. A. (2010). Justice Deserts: Spatial Inequality and Local Funding of
Indigent Defense. Arizona Law Review, 52(219).
Ramarapu, N. K., Mehra, S., & Frolick, M.N. (1995). A Comparative Analysis and Review of
JIT Implementation Research. International Journal of Operations & Production
Management, 15(1), 38-48.
Rapping, J. (2009). Directing the Winds of Change: Using Organizational Culture to Reform
Indigent Defense. Loyola Journal of Public Interest Law, 9, 177.
Russell, R. T. (2015). Problem-Solving Court: Veterans Treatment Courts. Touro L. Rev., 31,
385-615.
Salanova, M., Cifre, E., & Martin, P. (2004). Information technology implementation styles and
their relation with workers’ subjective well-being. International Journal of Operations &
Production Management, 24 (1-2), 42-54.
Schofield, N. J., Bourke, S., & Leonard, C. (2004). Affecting the affective: affective outcomes in
the context of school effectiveness, school improvement and quality schools. Issues in
Educational Research, 14(1), 1.
Schulhofer, S. J., & Friedman, D. D. (1993). Rethinking indigent defense: promoting effective
representation through consumer sovereignty and freedom of choice for all criminal
defendants. Am. Crim. L. Rev., 31, 73.
Segal, J. A., & Spaeth, H. J. (1993). The Supreme Court and the attitudinal model. Cambridge
University Press.
Segal, J. A., & Spaeth, H. J. (2002). The Supreme Court and the attitudinal model revisited.
Cambridge University Press.
Shadish, W. R., Cook, T. D., & Campbell, D. T. (2002). Experimental and quasi-experimental
designs for generalized causal inference. Houghton, Mifflin and Company.
Siegel, J. (2015). Narratives of Post-Conviction Public Defense: How Attorneys, Clients, and
Judges Experience the Indigent Criminal Appellate Process. Retrieved from State
Appellate Defender Office Website: http://www.sado.org/content/pub/10583_Narrativesof-Post-Conviction-Public-Defense.pdf
Small, M. H., & Yasin, M. (2000). Human factors in the adoption and performance of advanced
manufacturing technology in unionized firms. Industrial Management and Data Systems,
100(8), 389-402.
Smith, C. E. (1990). United States magistrates in the federal courts: Subordinate judges. Praeger
Publishers.

134

Spangenberg, R. L., & Beeman, M. L. (1995). Indigent Defense Systems in the United
States. Law & Contemp. Probs., 58, 31.
Starr, S. B., & Rehavi, M. M. (2013). Mandatory sentencing and racial disparity: Assessing the
role of prosecutors and the effects of Booker. Yale LJ,123, 2.
Sutton, J. S. (2014). Courts As Change Agents: Do We Want More—or Less?. Harvard Law
Review, 127, 1419-1445.
Thomas, S. A., Moak, S. C., & Walker, J. T. (2013). The Contingent Effect of Race in Juvenile
Court Detention Decisions The Role of Racial and Symbolic Threat. Race and
justice, 3(3), 239-265.
Uphoff, R. (2010). Broke and Broken: Can We Fix Our State Indigent Defense System?:
Foreword. Mo. L. Rev., 75, 667-1409.
Vick, D. W. (1995). Poorhouse justice: Underfunded indigent defense services and arbitrary
death sentences. Buff. L. Rev., 43, 329.
Wallace, S. (2000). Parity: The Fail Safe Standard. U.S. Department of Justice, Compendium of
Standards for Indigent Defense Systems: Standards for Administration of Defense
Systems.
Winter, S. G., & Szulanski, G. (2001). Replication as Strategy. Organization Science, 12(6),
730-743.
Worden, A. P., Davies, A. L. B., & Brown, E. K. (2010). Patchwork of Policies: Justice, Due
Process, and Public Defense across American States, A. Alb. L. Rev., 74, 1423.
Worrall, J. L., & Nugent-Borakove, M. E. (Eds.). (2008). The changing role of the American
prosecutor. Suny Press.

135