Michigan

Juvenile Indigent Defense Delivery System

MIMichigan provides counsel to indigent youth through a county-based system which includes public defenders, contracts with private attorneys, assigned counsel, and a combination of assigned counsel and public defenders. The system is funded entirely by individual counties and the counties choose how attorneys are appointed for indigent defendants.

If a defendant has not waived the right to counsel and cannot hire counsel, the court appoints counsel. The attorney receives a reasonable compensation, determined by the chief judge, from the country treasurer. Mich. Comp. Laws § 775.16. Compensation is increased if an attorney follows a case into another county or the Supreme Court. Mich. Comp. Laws § 775.17.

The Michigan State Appellate Defender Office (SADO), which has offices in Detroit and Lansing, handles approximately 25% of statewide appellate assignments in both adult and juvenile cases and provides legal resources to the defense bar to accommodate the remaining appeals. The SADO website provides a searchable directory of attorneys who specialize in juvenile defense work.

Michigan has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.

Michigan youth have a right to a trial by jury if requested. Mich. Comp. Laws § 712A.17(2).

Court Rules

In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. Michigan’s delinquency proceedings are governed by the Michigan Court Rules for Special Proceedings and Actions, Subchapters 3.900 (Proceedings Involving Juveniles) and 6.900 (Rules Applicable to Juveniles Charged with Specified Offenses Subject to the Jurisdiction of the Circuit or District Court).

Right to Counsel

Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.

In Michigan, youth in juvenile court have the right to counsel at every stage of the proceeding. Mich. Comp. Laws § 712A.17(c)(1).

The court shall inform the child of this right and “shall appoint an attorney to represent the child if one or more of the following apply:
(a) The child’s parent refuses or fails to appear and participate in the proceedings;
(b) The child’s parent is the complainant or victim;
(c) The child and those responsible for his or her support are financially unable to employ an attorney and the child does not waive his or her right to an attorney;
(d) Those responsible for the child’s support refuse or neglect to employ an attorney for the child and the child does not waive his or her right to an attorney;
(e) The court determines that the best interests of the child or the public require appointment.”
Mich. Comp. Laws § 712A.17(c)(2).

In addition to the circumstances listed in Mich. Comp. Laws § 712A.17(c)(2), the Michigan Court Rules for Special Proceedings and Actions specify that youth have a right to counsel in the following proceedings:

Determination of Indigence

Michigan has no presumption of indigence in juvenile delinquency proceedings. However, the court must appoint an attorney to represent a juvenile if the juvenile or the juvenile’s guardian are unable to financially retain an attorney and the juvenile does not waive his or her right to counsel. Mich. R. Spec. P. 3.915(A)(2)(c).

The court may assess all or part of the cost of legal representation against the juvenile, a person responsible for supporting the juvenile, or both. Such an order shall not be binding unless there was an opportunity for a hearing and a copy of the order was served on the person. Mich. R. Spec. P. 3.905(D).

Waiver of Counsel

In Michigan, a juvenile may waive his or her right to counsel if:

1)     “An attorney is appointed to give the juvenile advice on the question of waiver;
2)     The magistrate or the court finds that the juvenile is literate and is competent to conduct a defense;
3)     The magistrate or the court advises the juvenile of the dangers and of the disadvantages of self-representation;
4)     The magistrate or the court finds on the record that the waiver is voluntarily and understandingly made;
5)     The court appoints standby counsel to assist the juvenile at trial and at the juvenile sentencing hearing.”
Mich. R. Spec. P. 6.905

Waiver is not allowed if the child’s parent or guardian ad litem objects, or if the court determines that the best interests of the child or the public require appointment of counsel. Mich. Comp. Laws § 712A.17c(3). Even if a juvenile has waived the right to counsel, “the court at later proceedings must reaffirm that the juvenile continues to not want an attorney.” Mich. R. Spec. P. 6.905(A).

Detention Provisions

When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Michigan, a detention hearing must occur within 24 hours of a child being taken into custody, excluding Sundays and holidays. Mich. R. Spec. P. 3.935(A)(1). “The preliminary hearing may be conducted without a parent, guardian, or legal custodian present, provided a guardian ad litem or attorney appears with the juvenile.” Mich. R. Spec. P. 3.935(B).

Provisions for the detention of juveniles are found in Mich. Comp. Laws §§ 712A.15, 712A.16, 712A.18, 764.27a, and Mich. R. Spec. P. 3.915, 3.934, 3.935, 6.909, and 6.937.

The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.

Post-Disposition Advocacy

The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Michigan statutes list seven post-disposition proceedings at which youth have a right to counsel.

In Michigan, youth have a right to counsel in the following post-disposition proceedings:

NJDC’s Post-Disposition Page has more information on this topic from a national perspective.

Ages of Juvenile Court Jurisdiction

The age of a child who comes within the jurisdiction of the state’s juvenile and family courts is defined by state law. In Michigan:

Youth in Adult Court

Despite the existence of juvenile courts, many youth are still tried as adults. Michigan has two ways that juveniles can be prosecuted as adults:

Assessments

NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.

NJDC has not yet conducted an assessment of the juvenile indigent defense system in Michigan. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.

Current through January 2014.