Juvenile Indigent Defense Delivery System
Michigan 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.
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 youth 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 Ann. § 712A.17(2).
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, 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 Ann. § 712A.17c (1).
The court shall inform the youth of this right and “shall appoint an attorney to represent the [youth] if one or more of the following apply:
(a) The [youth]’s parent refuses or fails to appear and participate in the proceedings;
(b) The [youth]’s parent is the complainant or victim;
(c) The [youth] and those responsible for [their]r support are financially unable to employ an attorney and the child does not waive [their] right to an attorney;
(d) Those responsible for the [youth]’s support refuse or neglect to employ an attorney for the child and the child does not waive [their] right to an attorney;
(e) The court determines that the best interests of the [youth] or the public require appointment.”
Mich. Comp. Laws Ann. § 712A.17c(2).
In addition to the circumstances listed in Mich. Comp. Laws Ann. § 712A.17c(2), the Michigan Court Rules for Special Proceedings and Actions specify that youth have a right to counsel in the following proceedings:
- Arraignment, Mich. Ct. R.. 6.907(C);
- Preliminary hearing, Mich. Ct. R. 3.935(B)(4)(a);
- Plea of admission or no contest, Mich. Ct. R. 3.971(B)(2);
- Juvenile sentencing hearing, Mich. Ct. R. 6.931;
- Certain post-disposition proceedings, Mich. Ct. R. 6.937, 6.938;
- Probation violation, Mich. Ct. R. 3.944(C)(1)(b), 3.956(A)(2);
- Hearing to extend jurisdiction, Mich. Ct. R. 3.945(B)(1)(b);
- Post-Dispositional Secure Detention Pending Return to Placement, Mich. Ct. R.. 3.946(C)(2);
- Designation Hearing (transfer hearing), Mich. Ct. R. 3.951(A)(2)(b)(i);
- Violation hearing. Mich. Ct. R. 3.987(C)(3).
Determination of Indigence
Michigan has no presumption of indigence in juvenile delinquency proceedings. However, the court must appoint an attorney to represent a youth if the youth or the youth’s guardian are unable to financially retain an attorney and the youth does not waive their right to counsel. Mich. Ct. R. 3.915(A)(2)(c). Additionally, if those who are financially responsible for the youth “refuse or neglect” to retain an attorney, the court must appoint counsel to represent the youth. Mich. R. Spec. P. 3.915(A)(2)(d). Youth who are subject to the jurisdiction of adult criminal court must be appointed an attorney unless they retain private counsel or waive their right to an attorney. Mich. Ct. R. 6.905(B).
The court may assess all or part of the cost of legal representation against the youth, a person responsible for supporting the youth, 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. Ct. R.6.905(D).
Waiver of Counsel
In Michigan, a youth may waive their right to counsel if:
1) “An attorney is appointed to give the [youth] advice on the question of waiver;
2) The magistrate or the court finds that the [youth] is literate and is competent to conduct a defense;
3) The magistrate or the court advises the [youth] 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 [youth] at trial and at the [youth] sentencing hearing.”
Mich. Ct. R. 6.905.
Waiver is not allowed if the [youth]’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 Ann. § 712A.17c(3). Even if a youth has waived the right to counsel, “the court at later proceedings must reaffirm that the [youth] continues to not want an attorney.” Mich. Ct. R.6.905(A).
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. Ct. R. 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 [youth].” Mich. R. Spec. P. 3.935(B)(1).
Provisions for the detention of youth are found in Mich. Comp. Laws Ann. §§ 712A.14, 712A.15, 712A.16, 712A.18, 712A.18h, 764.27a, and Mich. Ct. R. 3.934, 3.935, 3.944, 3.946, 6.106, 6.907, 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.
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:
- Certain post-disposition proceedings. Mich. Ct. R. 6.937, 6.938;
- Probation violation. Mich. Ct. R. 3.944(C)(1)(b), 3.956(A)(2);
- Hearing to extend jurisdiction. Mich. Ct. R. 3.945(B)(1)(b);
- Post-Dispositional Secure Detention Pending Return to Placement. Mich. Ct. R. 3.946(C)(2);
- Designation Hearing (transfer hearing). Mich. Ct. R. 3.951(A)(2)(b)(i);
- Violation hearing. Mich. Ct. R.. 3.987(C)(3).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a youth who comes within the jurisdiction of the state’s juvenile and family courts is defined by state law. In Michigan:
- No statute specifies the youngest age at which a youth can be adjudicated delinquent;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 17th birthday; after age 17, the youth is charged in adult court. Mich. Comp. Laws Ann. § 712A.2(a);
- Juvenile court can retain jurisdiction over youth until age 21 for certain offenses, provided that the offense alleged to have been committed occurred before the youth turned 18. Mich. Comp. Laws Ann. § 712A.2a(5).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Michigan has two ways that youth can be prosecuted as adults:
- Discretionary waiver can be used for youth age 14 and older alleged to have committed a felony. Mich. Comp. Laws Ann. § 712A.4.
- Once an adult/always an adult. “If the [juvenile] court determines that there is probable cause to believe that an offense has been committed that if committed by an adult would be a felony and that the [youth] committed the offense, the court shall waive jurisdiction of the [youth] if the court finds that the [youth] has previously been subject to the jurisdiction of the circuit court.” Mich. Comp. Laws Ann. § 712A.4(5).
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.