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Opinion | Michigan must pass bill to ensure juveniles receive legal counsel

A 15-year-old boy was accused of making a prank phone call to his neighbor and taken into custody by police. A judge then ordered that he be confined until his 21st birthday. The young man’s parents were not informed when he was arrested, and he never received notice of the charges, a trial, or an attorney to represent him.

Peter Cunningham headshot
Peter Cunningham is the executive director of the State Bar of Michigan.

This is, unfortunately, a true story. The case ultimately led the United States Supreme Court to hold in 1967 that children have a constitutional right to be represented by an attorney in juvenile delinquency proceedings and to have an attorney appointed to represent them, if they are unable to afford counsel. 

This constitutional right to counsel is especially important for children, whose ability to process and understand information and consequences is still developing. As the Court held: “The child requires the guiding hand of counsel at every step in the proceedings against him.”  

Unfortunately, in Michigan, for nearly 60 years, the Constitution’s promise of legal counsel in juvenile proceedings has been broken. When Michigan legislators return to session this month, they have an opportunity and an obligation to give final approval to legislation that will at last ensure Michigan’s children have access to skilled attorneys who will zealously defend their interests and protect their rights when they are faced with the “awesome prospect of incarceration.” Our children deserve it, and our Constitution demands it.  

The Michigan Task Force on Juvenile Justice Reform—established by Gov. Gretchen Whitmer and chaired by Lt. Gov. Garlin Gilchrist—acknowledged the pressing need for legislative action to provide counsel to children when it issued its final report in July 2022. The Task Force found “significant variation” in local defense systems and that “Michigan has no centralized structure and minimal standards, supports, or resources for juvenile public defense statewide.” 

Similarly, in 2020, the National Juvenile Defender Center (since renamed the Gault Center) conducted a comprehensive assessment of access to, and quality of, juvenile defense counsel in Michigan. The Center concluded bluntly that Michigan’s juvenile justice system is “inadequate to ensure constitutional guarantees for children are protected.” 

The Center wrote that “[t]he absence of state funding for juvenile defense has perpetuated local juvenile defense systems in which attorneys frequently lack the training, resources, and time necessary to provide the quality of defense services youth deserve. As a result, young people’s constitutional rights are often inadequately protected.” The Center’s assessment of Michigan was damning, but sadly deserved. 

In addition to assessing the breadth and depth of Michigan’s juvenile defense challenges, the Center made a series of recommendations for corrective action. Among them, that Michigan should create a system of state oversight of juvenile defense delivery systems to ensure youth have access to effective representation; that we should establish mandatory state standards for juvenile defense delivery systems, and that we must ensure adequate funding to support a system of juvenile defense services that provides effective assistance of counsel. 

Gov. Whitmer’s task force reached the same conclusion. Among its 32 recommendations, the task force unanimously proposed that the Michigan Indigent Defense Commission (MIDC) be expanded “to include development, oversight, and compliance with youth defense standards in local county defense systems.” 

The MIDC was established in 2013 in the wake of a class-action lawsuit challenging the constitutionality of Michigan’s adult indigent defense system or lack thereof. It has since developed and overseen the implementation of minimum system standards, ensuring that Michigan provides effective assistance of counsel consistent with the Constitution. In its first decade of operation, the MIDC has been widely recognized as an exemplary model and a national leader in indigent defense.  

With these recommendations in hand, Michigan lawmakers introduced a 20-bill package. It included expanding diversion opportunities; providing courts with more tools to guide disposition decisions; requiring the use of data-driven mental health, risk, and detention screening assessments; and making more resources available for effective, community-based alternatives to incarceration. 

Among the bills was House Bill 4630, which would expand the MIDC’s statutory mandate, as recommended by the Task Force and the Center, and make the long-unfilled, constitutional promise of a right to counsel for children a reality in Michigan.

For seven months, the state House and Senate held hearings, engaged stakeholders and worked on the bill package. When the Legislature adjourned in November, it had passed 19 of the 20 bills, which were signed into law Dec. 12. Unfortunately, one was left behind. After being approved overwhelmingly in the state House by a bipartisan vote of 85-25, House Bill 4630 and the promise of legal representation for Michigan’s children stalled in the state Senate. 

We applaud the Legislature’s work on these transformational reforms, but its work remains incomplete. Both attorneys and lawmakers take oaths of office before they begin their service, swearing to support the Constitution — which unequivocally mandates that the state provide children with access to counsel. 

When Senators return in January, their first order of business must be to pass House Bill 4630 and send it to Gov. Whitmer for her signature. This legislation must not be delayed any further. Today and every day, across Michigan, too many children are being left to navigate the juvenile justice system with woefully inadequate legal representation, or no representation at all. It’s unconscionable and unconstitutional.

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