The Family Repair Fund: A Blueprint for Making Judicial Misconduct Cost Something

When a judge or a prosecutor’s documented misconduct destroys a family, the only people who pay right now are the family. A compliance-linked compensation model would change that, without touching legitimate judicial independence.

Right Now, the Family Pays. Nobody Else Does.

When a judge exceeds a sentencing guideline without support in the record, when a prosecutor sits on evidence that should have been turned over, when an appellate order gets quietly ignored back in the trial court, someone pays for that. It is never the judge. It is never the prosecutor. It is the family.

A 2015 national study by the Ella Baker Center for Human Rights, surveying more than a thousand formerly incarcerated people and family members across fourteen states, found that family members outside prison were primarily responsible for court related costs in 63 percent of cases, and that 83 percent of the people carrying that cost were women. Lost wages. Housing instability when one income disappears. Childcare that suddenly has to be solved by someone else. Therapy for children who do not understand why a parent is gone. Legal expenses that keep accumulating long after the original case. The cost of a phone call or a video visit, priced by a private vendor with no competition. None of that shows up in a courtroom. All of it is real.

Meanwhile, the person whose documented conduct caused it keeps drawing a salary, keeps a pension accruing, and in most cases keeps doing the exact same job the next morning.

If You Kidnap Someone’s Family Member and Financially Cripple the Family, There Must Be Consequences

Let us say this without the language government uses to make violence sound administrative: the state takes a human being by force, locks that person in a cage, and threatens more force if anyone tries to stop it. When that removal is unsupported by law, infected by a rights violation, or prolonged by misconduct an official knew or should have corrected, the family’s experience is not meaningfully softened by calling it “custody.” The state has taken their loved one, controlled where that person can live, work, sleep, speak, and move, and made the family pay for the privilege of maintaining contact. In plain moral language, the family has watched the government kidnap someone they love.

If government officials are going to exercise that level of power, there must be consequences when they abuse it. Not a private letter. Not a quiet correction years later. Not another hearing paid for by taxpayers while the same official collects the same salary. Not a settlement the public funds while the person who caused the harm contributes nothing. A consequence must reach the office, the record, the authority, and—when misconduct is independently established—the paycheck.

The damage is not limited to the person behind bars. It spreads through an entire household: lost wages, missed rent, repossessed vehicles, childcare emergencies, legal debt, prison phone charges, travel expenses, therapy, damaged credit, interrupted education, and children growing up without a parent present. Families sell property, borrow money, lose work, and go without basic needs to survive a crisis the government created. Even if a court later recognizes the violation, the ruling does not restore the missed birthdays, replace the lost home, repair the credit, return the job, or give the family back the years it spent in survival mode.

Officials routinely insist that incarceration creates accountability. Then accountability must apply to the people who impose and defend incarceration too. A judge or prosecutor should not be punished for a lawful, good-faith decision merely because an appellate court later disagrees. But after an independent process establishes a serious, repeated, or bad-faith violation of law or rights, the absence of any personal consequence is indefensible. The state cannot credibly demand that powerless people “take responsibility” while designing immunity, secrecy, indemnification, and uninterrupted pay for the powerful people whose misconduct destroys those families.

This is the line the Family Repair Fund is designed to draw: when government wrongfully takes freedom and financially cripples a family, it owes more than an apology or a corrected docket entry. It owes repair. The responsible institution should pay, the officials whose independently established misconduct caused the harm should contribute through lawful financial penalties, and the family should receive prompt compensation without surrendering any other right or remedy. Power this severe without consequences is not justice. It is impunity.

What Michigan Already Has, and Why It Doesn’t Reach Far Enough

Michigan is not starting from nothing. The Michigan Constitution has allowed the Judicial Tenure Commission to recommend that the Supreme Court suspend a judge with or without pay since a 1968 constitutional amendment created the Commission. The tool already exists.

It is almost never used at that level. In practice, the large majority of confirmed judicial misconduct in Michigan is resolved through private discipline, a letter of caution or admonition that never becomes part of any public record. Private discipline carries no financial consequence, no public notice to the voters who decide whether that judge keeps the job, and no mechanism for the people harmed by the underlying conduct to ever learn it happened at all.

Prosecutors face an even higher wall. Under the United States Supreme Court’s 1976 decision in Imbler v. Pachtman, a prosecutor acting within the scope of prosecuting a case holds absolute immunity from civil suits for damages, even when the underlying conduct involves withholding evidence that should have been disclosed under Brady v. Maryland. The Court’s reasoning was that prosecutors need to be able to do their jobs without the threat of personal lawsuits hanging over every decision. Whatever the merit of that reasoning in 1976, the practical result today is that a documented Brady failure rarely costs the prosecutor anything personally, regardless of how many years it costs the person on the other side of the file.

Case in Point: Barry County

Clutch Justice’s reporting on Judge Michael Schipper’s Fifth Circuit Court illustrates exactly how little a confirmed finding currently costs. The Judicial Tenure Commission confirmed misconduct by Schipper dating to 2014. That finding was addressed through private discipline, meaning no public censure, no suspension, and no pay consequence of any kind. A Michigan Supreme Court remand in Docket No. 167549 separately addressed sentencing and restitution issues arising from proceedings in that courtroom, and Clutch Justice’s broader Barry County coverage has documented a pattern of upward sentencing departures across multiple cases in the years since the private discipline was issued. A separate matter, People v. Myers, SC 167372, remains active before the Michigan Supreme Court, which reopened briefing this month after the trial court’s handling of a recantation affidavit raised further compliance questions on remand. That matter has not been adjudicated, and this piece does not draw a conclusion about it.

The prosecutorial side of the ledger tells a similar story. MSP Sgt. Bryan Fuller was the named defendant in McCann v. Fuller, a federal civil rights case that produced a $14.5 million jury verdict and an $11 million settlement, litigation significant enough that it prompted the Michigan State Police to adopt its first written Brady and Giglio disclosure policy. The settlement was paid by the state. Fuller kept his job. Clutch Justice’s reporting has documented that Barry County’s Prosecutor’s Office received actual written notice of Fuller’s credibility record in September 2023, and that the office’s caseload has continued to show zero Brady or Giglio notices referencing him since. Separately, Clutch Justice’s reporting has documented that a former Barry County assistant prosecutor privately acknowledged, in the Velasquez matter, that a plea denial had been wrong. That acknowledgment corrected one case. It produced no consequence beyond it.

The Blueprint: Five Pieces of a Compliance-Linked System

A workable version of this proposal is not a single lever. It is five pieces that have to move together, because any one of them alone either does nothing or goes too far.

What Michigan Already Proves Is Possible, and What Not to Copy

Michigan does not have to invent the idea that harm deserves a dollar figure. The Wrongful Imprisonment Compensation Act, signed in 2016, already pays exonerated people $50,000 for every year they were wrongfully imprisoned. Between 2017 and 2021 alone, the fund paid out more than $22 million.

But WICA shows exactly what not to replicate. It compensates only the exonerated person, not the family that carried the cost while that person was inside. It only pays out after full exoneration, which can take years the family does not have. And it requires repayment if the same person recovers damages through a separate civil suit. In one documented case, a man and his daughters won a $7.5 million federal settlement against the City of Detroit, and a Michigan appeals court ruled they had to repay roughly $1.2 million they had already been awarded under WICA. A Family Repair Fund built the same way would punish families for using more than one available remedy. It should not be built that way.

Colorado offers a cleaner model for the accountability half of this proposal. Its 2020 law, SB 20-217, removed qualified immunity as a defense in state civil rights claims against police officers and made an officer personally liable for the lesser of 5 percent of a judgment or $25,000, but only when the officer’s own employer determines, after review, that the officer did not act on a good faith and reasonable belief that the conduct was lawful. Everything else is still indemnified by the public employer. The personal exposure is narrow, triggered only by a bad faith finding, and it applies to police officers, who already have less legal protection than judges or prosecutors currently receive. If Colorado can extend a version of personal accountability to police without collapsing the profession, there is no structural reason the same logic cannot reach the two offices that currently have more protection than anyone else in the system.

Why This Isn’t an Attack on Judicial Independence

The Michigan Judicial Tenure Commission’s own founding purpose is to hold judges accountable for misconduct while protecting their ability to rule independently and in good faith on the merits of a case. That balance is not new, and this proposal does not ask Michigan to invent it. It asks Michigan to actually fund the accountability side of a balance it has claimed to strike since 1968.

The distinction that protects independence is the same one that already separates legal error from misconduct in existing disciplinary law: a ruling that gets reversed on appeal is not, by itself, evidence of anything except that reasonable judges can disagree, or that one court read the law differently than another. A documented, repeated, or bad faith violation, confirmed through the same independent hearing process Michigan already uses, is a different category entirely. Nothing in this proposal changes how that line gets drawn. It only changes what happens once the line has already been crossed and confirmed.

What the Fund Would Actually Cover

A Family Repair Fund modeled on this structure would be built around the losses families already describe when researchers bother to ask them: lost wages when the household’s income earner is removed, housing instability when rent can no longer be covered on one income, childcare costs that appear overnight, therapy for the people left behind, mounting legal expenses that continue long after the original proceeding, and the cost of prison phone calls and visitation, priced by vendors who face no market competition inside a facility. These are not hypothetical categories. They are the same categories the Ella Baker Center documented at the national level in 2015, and Michigan families experience the local version of every one of them.

The Bottom Line

Right now, when the record shows a judge or a prosecutor got it wrong, badly and repeatedly, the state sometimes pays a settlement years later, and the family pays for everything in between with no guarantee of anything back. The person whose conduct caused the harm pays nothing at all, keeps the job, and keeps the paycheck.

A compliance-linked compensation model does not punish a judge for an honest, reversible legal call. It attaches a real cost, for the first time, to the kind of confirmed, repeated, independently verified misconduct that already has a name in Michigan law and already produces zero consequence for the person who committed it. That is not radical. That is just finally billing the right account.