The special commission created to find solutions to the “indigent defense crisis”
in Massachusetts issued its Report yesterday (April 1, 2005). The crisis was
sparked by statewide boycotts of assigned counsel, called “bar advocates,” over
the low rates paid by the State (background here) (Statewide News Service,
Boston Globe, April 2, 2005)
The major conclusions and recommendations are (see MassLive):
The commission called for increasing the pay of bar advocates to
$55 an hour for District Court cases, $70 an hour for Superior Court (felony)
cases, and $110 for murder cases. The increases would be phased in over three
The commission said the state relies too heavily on private lawyers, who
are handling 95 percent of the cases involving the indigent and almost all the district
court assignments. The report recommends pilot projects in both Hampden and
Bristol counties that would include hiring 15 staff lawyers for each, who would handle
just District Court cases.
The commission also recommends amending the statutes for “non-serious
misdemeanors” so they are punishable as civil infractions — saying the caseload could
be reduced by 15,000 cases a year.
The misdemeanors include: operation of a vehicle with a suspended license,
registration or insurance; shoplifting; disorderly person or disturbing the peace;
trespassing, and larceny by check.
The Commission also wants to tighten procedures so that only the “truly needy”
are provided assigned counsel.
The Massachusetts Association of Court Appointed Attorneys says it won’t have a statement on
the Report for a few days. Assigned counsel have been advised on their Listserve to make their
public responses to the pay proposals positive. It seems clear that they are, however, quite unhappy
about the Commission’s recommendation to increase the number of public defenders and to move
toward a system that has a more appropriate balance between private and public defenders. (As we
defendants are more likely to receive consistently competent representation in a system with fulltime
public defenders, with statewide monitoring and funding, than from situations that rely heavily on
Anthony C. Bonavita, president of the Hampden County Bar Advocates, is quoted saying the new
pay rate will attract an adequate number of assigned counsel, and the pilot project in his county
(the epicenter of the group boycotts) is not needed. I’ve been reading the Massachusetts Private
Counsel Listserve today, and there are grave warnings of disaster (cost and competency) if the ratio
is shifted to rely more on public defenders.
The Commission Report was written in a manner meant not to offend anyone (it never uses
the word boycott or strike, and never mentions that hiring more public defenders is good
insurance against further coercive joint action by assigned counsel). I believe it did a good
job of balancing interests — the valid interests of assigned counsel in a fair pay raise; the need
to improve the system to provide effective and efficient defense to the indigent; and the State’s
interest in paying only for the defense of the truly indigent.
The actions and words of assigned counsel and their group leaders will go a long way
toward showing whether they truly care more about the 6th Amendment Rights of their
clients than about their own financial interests.