f/k/a archives . . . real opinions & real haiku

April 2, 2005

Mass. Indigent Defense Report

Filed under: — David Giacalone @ 11:36 pm


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,

Commission recommends pay hike, decriminalization;” also see MassLive and 

Boston Globe, April 2, 2005)

  • Click for the 2-page Executive Summary or the 30-page Full Report of

    the Commission to Study the Provision of Counsel to Indigent Persons in

    Massachusetts (April, 2005)

The major conclusions and recommendations are (see MassLive):

tiny check  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



tiny check  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.


tiny check  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. 

tiny 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

mentioned here, in February, the recent ABA “Gideon” study on indigent defense concluded that

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

assigned counsel.) 


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.

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