STATE OF MICHIGAN BOARD OF COMMISSIONERS OF THE COUNTY OF ALLEGAN CIRCUIT COURT INDIGENT DEFENSE PROCESS/FEE SCHEDULE

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1 STATE OF MICHIGAN BOARD OF COMMISSIONERS OF THE COUNTY OF ALLEGAN CIRCUIT COURT INDIGENT DEFENSE PROCESS/FEE SCHEDULE WHEREAS, the County strives to provide professional, well qualified indigent defense representation and to continuously improve related processes; and WHEREAS, Circuit and District Court representatives have worked collaboratively with County Administration and Board of Commissioner representatives to identify areas for potential improvement; and WHEREAS, the necessary administrative order(s) have been updated to reflect the revised application, review and appointment procedures; and WHEREAS, a revised fee schedule has been established and will go into effect August 1, 2013 THEREFORE BE IT RESOLVED, that the Allegan County Board of Commissioners supports these changes and the continued efforts to monitor and evaluate the County s indigent defense processes; and BE IT FURTHER RESOLVED, the financial and program related impact of these changes will be closely monitored by the Courts and periodically reported to the County.

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7 Project Scoping Document IDEA NAME: Indigent Defense Funding IDEA SPONSOR: Mike Day DATE CREATED: 5/7/ BACKGROUND / HISTORY: There are numerous aspects to this project Compensation Rates for Court Appointed Counsel To defend indigent parties, the county currently compensates court appointed counsel at a rate of $55.00 per hour for capital cases and $47.50 per hour for felony cases. These compensation rates were established prior to 1993 and have not been adjusted since. Clearly, rates set two decades ago are no longer commensurate with attorney fees currently charged for legal representation. Attorneys working in the county have raised questions about the compensation levels and there is a risk that the future pool of attorneys willing to defend indigent parties will dwindle if rates aren t kept reasonably competitive. It is likely that some billing latitude is being taken by attorneys and given by the courts as a way to temporarily address the inequity. In addition, six years ago, a lawsuit was filed against the state on behalf of defendants in three counties (Muskegon, Berrien and Genesee Counties) for underpayment of indigent defense counsel. The argument being, that indigent parties aren t receiving the same level of representation and defense because of the rates being paid to court appointed counsel. These legal cases are still ongoing and their outcome is likely to impact all counties in Michigan. As a result of this legal action, Governor Snyder appointed a commission that came up with recommendations for standards for ongoing education, adequate compensation, limiting caseloads, etc. to ensure effective counsel is given to indigent parties by their court appointed attorney. Various bills have been introduced to establish a permanent state commission that would establish these standards, but there are numerous issues that are still being discussed and addressed. According to a Detroit News article - advocates pushing for changes in Michigan estimate 83 counties spent about %75 million to $80 million in 2009 on criminal defense for the poor, ranking 44 th -lowest nationally. Implementing the proposed changes to the fee structure would result in a net increase in compensation to court appointed attorneys. Hourly Billing Rates vs. Flat Fees A second issue being addressed is a change in the way that attorneys are compensated. They are currently paid one of two hourly billing rates based on the type of case they are working on. This approach has posed several challenges. First, there is a heavy administrative burden to the county in reconciling hourly attorney billing with cases that come before the court (approximately 600 alone at the circuit court level). While there is no indication of

8 intentional abuse, this accounting methodology is prone to human error. Hourly billing can also create an incentive for attorneys to spend more time than necessary on a case. The proposed approach would set a predetermined fee schedule for each type of case based on court research into the amount of work required to defend similar cases in the past. To eliminate any incentive or disincentive for providing full and complete representation, trial days would be billed separately in ½ day increments. A flat fee approach would dramatically decrease administrative costs for the courts, county and attorneys. Cases underway at the time a new fee structure is adopted would need to be finished out under the hourly system. Court Appointed Attorney Selection Process This project also aims to improve the process for selecting and appointing attorneys to indigent defense cases. There is some contention among area attorneys concerning the process for getting on the roster for appointment as indigent defense counsel. The proposed solution calls for establishing a standard application form for attorneys seeking to be included on the appointment roster. It also calls for creating and Indigent Defense Review Board to review these applications and make roster appointments biannually. The board would also conduct an annual performance review on each attorney. This approach would develop a feeder list for promoting attorneys to increasingly higher tier cases based on their experience and performance. This would ensuring indigent parties are receiving counsel with the ability, training and experience to match the nature and complexity of the case assigned, thereby addressing one of the concerns voiced at the state level. Attorneys would have an equal opportunity to apply and be selected based on their experience and performance. The Review Board would select the best candidates, keeping the roster list short enough to make if financially viable for attorneys to apply. The courts have discussed this approach with some of the attorneys on the county s roster at a recent Bench Bar meeting and the concept was well received. This type of attorney selection and appointment process has been implemented in other counties such as Kalamazoo. The Review Board could also review the established fee structure on a regular basis and recommend changes. Indigent Defense Billing Process Ideally, the courts would like to have invoicing and payments handled entirely by county finance to minimize conflicts of interest in paying for the attorneys you are appointing. Billing would likely occur at the end of the month in which a case is settled. With 7-8 attorneys on the roster submitting monthly bills, just under 100 invoices would be processed annually. There are some process issues that will need to be worked out. Finance does not currently have the capacity to enter invoices on behalf of the courts so the courts will need to continue reviewing and approving attorney billing for the time being. Even if invoice entry was transferred to finance, there would still need to be some process for the courts to sign off on services rendered by an attorney (confirm appointment to a specific case, what the case was, whether it went to trial, number of days, and that it has been closed). Finance will also need to work with the courts to develop a voucher for attorneys to use in submitting their monthly billing. Indigent Defense Expenditure Accounts Circuit Court (Mike) currently budgets $300,000 for court appointed attorneys in one account (includes funds for both indigent defense and appellate attorneys). District Court (Linda) currently budgets $100,500 for court appointed attorneys in a separate account. This budget covers the contracts for two court appointed attorneys for misdemeanor cases and includes $500 to pay for a third attorney in cases where both contracted ones have to disqualify themselves due to a conflict of interest. Neither CC nor DC would have issues combining or re-arranging these accounts. David did not see a specific need to set up a single separate indigent defense fund/activity from a financial perspective. However, Mike believes that financial reporting will be an important element of any indigent defense legislation that may get passed in Lansing. Revenue Misconceptions When District Court established a fee schedule sometime prior to 1995, a policy was adopted requiring indigent defenders to reimburse the funding unit up to $200 of their court costs depending on their ability to pay. The ability to pay is evaluated at the time of sentencing and every subsequent time they are brought before the court. The

9 $200 represents a mix of court costs and court appointed attorney fees but is not specifically broken out and does not include the county s administrative costs. In July of 2012, Circuit Court started assessing up to $500 for court appointed attorney fee reimbursement depending on income level. Prior to that, attorney fees were lumped into overall court costs. When felony cases are settled by plea bargain in District Court, up to $200 dollars is collected from those able to reimburse the court. This is receipted as revenue by District Court. However, court appointed attorney fees for felony cases are budgeted, billed and paid for by Circuit Court even if they are settled by plea bargain in District Court. As a result of this practice, District Court showed $130,000 in revenues for 2012, but only $100,000 in expenditures making it seem like District Court is collecting more revenue than it is spending on indigent defense. Circuit Court began recovering attorney fees where possible mid-way through 2012, receipting a total of approximately $3,000 for ½ the year which translates to an estimated $6,000 annually. Overall, the county is spending approximately $400,500 on attorneys for indigent defense between the two courts (less the proportion going for appellate attorneys) and recovering approximately $136,000 (not all of it for court appointed counsel). When both courts are considered together, the county is only recovering approximately $136,000 of the $400,500 or 34% of what is being spent on indigent defense. Budgetary Impact See attached financial analysis. 2.0 PROPOSED PROJECT SUMMARY: Implement changes to the way the county selects, manages and compensates court appointed attorneys in indigent defense cases and reviews their performance. 3.0 GOALS / EXPECTATIONS / OUTCOMES / DELIVERABLES DESIRED: Primary: Approve new fee schedule for court appointed attorney compensation. Monitor operational expenditures under new fee schedule and modify allocation if necessary to fund more equitable compensation for court appointed attorneys assigned to defend indigent parties. Switch from an hourly rate billing system to a set fee system based on the type of case. Create a formal application process for attorneys wishing to serve as court appointed attorneys. Establish an Indigent Defense Review Board to evaluate attorney applications and review attorney performance. Secondary: Modify the billing process to remove the courts from directly approving financial payment to the same attorneys they are assigning to defend cases. Establish a separate set of accounts specific to managing indigent defense. 4.0 PROJECT CONSIDERATIONS: How might this project reflect on the organization (public image)? With proper communication, it should be perceived favorably and have broad appeal to both sides of the political spectrum. While often perceived as a liberal cause, it is also fiscally responsible. According to Rep. Tom McMillin, R-Rochester Hills as quoted in The Detroit News - "We have people who are sent to jail who are innocent or sentenced to longer terms because they were not represented properly. Keep in mind that we also pay $30,000-plus every year for each innocent person to be in prison. Will this project have a noticeable impact on any service levels or impact them if not pursued? There is a growing risk that attorneys will not wish to provide indigent defense counsel if they are not equitably compensated. Establishing a set fee schedule and a better application process are in line with overall efforts for continuous quality improvement. What are the political aspects of this project (if any)?

10 Political perceptions can probably be mitigated with proper communication per public image above. There are also benefits in establishing more objective selection criteria, creating greater transparency in the process and being proactive in response to discussions at the state level. Are there any legal aspects to this project? With the courts sponsoring this project, the county should be fine from a legal perspective. A court order has been approved for the new fee structure. What risks or liabilities need to be considered? It is still unclear what impact new legislation on indigent defense will have on counties and whether the state will budget any funds to assist counties in meeting any state standards that are established. 5.0 SCOPE CONSIDERATIONS: What major work components are anticipated for this project? - Develop new fee schedule. - Outline funding strategy. - Prepare presentation to the Board - Seek board approval to pursue funding strategy. - Establish process and documents for managing appointments and billing. - Make budget adjustments in 2013 to cover remainder of year. - Budget for an operational funding increase in 2014 and subsequent years. - Establish an Indigent Defense Review Board. - Inform attorneys of the new system and provide training as necessary. - Inform public through press release & state of the county. What scope alternatives / options should be or have been considered? There are several independent elements to this project that could be considered individually: A. Approve and implement the new fee schedule. B. Establish Indigent Defense Review Board and improve attorney application and review process. C. Improve billing process. D. Establish separate set of accounts for indigent defense. 6.0 PROJECT PRIORITY: What are the driving forces behind the schedule (law, mandates, policy, budget, opportunity, issue, strategic goal)? Addresses issues with the current compensation for indigent defense attorneys. Aligns with county values of Honesty, Integrity, Respect and Commitment. Increases efficiency of processes for managing court appointed counsel. Affordable accessible services for indigent parties Organizational Project County as an organization has a mandated responsibility to provide indigent defense as part of an individuals rights to due process. Critical Project Need to meet statutory obligations and remedy a compensation issue. Ad Hoc Project project is unplanned and has not been included in a strategic plan. 7.0 PROJECT TYPE: Implementation Project will result in a new fee structure for court appointed attorneys, establishment of an Indigent Defense Review Board, new application, review and billing process. 8.0 ATTACHMENTS AND REFERENCES: Court Indigent Defense Workflow Proposed Attorney Fee Schedule Cost Analysis Felony Indigent Defense News article Push continues to fix Michigan s indigent defense The Detroit News 5/15/2013

11 Allegan County Indigent Defense Workflow and Associated Revenues and Expenditures 2 attorneys are under annual contract for $50,000 each to handle misdemeanor cases for 3 rd attorney if both primaries have conflicts of interest. $100,500 budgeted by District Court Misdemeanor Case Defendant given option of having court appointed attorney. (election made in 1,000 cases annually) Court assigns 1 of 2 attorneys under annual contract. (500 cases each) Case is prosecuted, settled and closed. Ability to reimburse the courts for costs is evaluated at sentencing. Up to $200 receipted in per case unless party is completely indigent. $200 partially reimburses court appointed attorney and court admin costs. Charge reduced to a misdemeanor, prosecuted, settled and closed. Approx $130,000 recovered in Felony Case Defendant given option of having court appointed attorney. (election made in 423 cases annually) Court assigns 1 of 5 court appointed attorneys from established roster. Case proceeds through preliminary exam. Case settled through plea bargain (50% of felonies). DISTRICT COURT CIRCUIT COURT Case sent to Circuit Court for prosecution. Approx. $3,000 recovered in Started half way through year. Case prosecuted, settled with or without a jury trial and closed. Ability to reimburse the courts for costs is evaluated at sentencing. Up to $500 receipted in per case unless party is completely indigent. $500 partially reimburses court appointed attorney and court admin costs. 5 attorneys invoice Circuit Court all billable hours worked on cases that originate as felonies. $300,000 budgeted by Circuit Court.

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14 Cost Analysis Felony Indigent Defense Analysis prepared by Mike Day - 6/26/2013 The following analysis represents an estimate, using recent annual case load figures, of annual costs for indigent defense using the proposed fee schedule. Average 23 capital felonies per year A. average 3 murder cases per year = $5385 ($1795 per case) B. average 20 other life offense felonies per year = $27,640 ($1382 per case) Average 400 non-capital felonies per year A. average 200 mandatory prison cases per year = $160,000 ($800 per case) B. average 200 other felony cases per year = $92,000 ($460 per case) Average trial time = 3 days per trial A. average 2 capital felony trials per year = $2880 ($1440 per case - $480 per day) B. average 16 non-capital trials per year = $18720 ($1170 per case - $390 per day) Average probation violation hearings per year = 104 x $248 = $25,792 Average annual cost for court appointed appellate counsel = $30,000 Total estimated annual cost under proposed fee schedule $362,417 Current annual budgeted amount = $300,000