17 August 2004

Massachusetts Conflict Over Lack of Indigent Representation

In Massachusetts large numbers of private attorneys have walked away from court appointments because the pay is so bad:
The pay rate for public defenders is $30 an hour for district court, $39 an hour for superior court and $54 an hour for murder cases. The $30 rate is the lowest by statute of any state in the nation. Legislators responded recently by approving an hourly increase of $7.50.
However, the Legislature "has yet to pass a supplemental spending bill to fund it." Needless to say, this has not brought private attorneys back to indigent defense.

There was the obligatory lawsuit in an attempt to force a raise in compensation but the Massachusetts Supreme Judicial Court (SJC) chose a different path:
Last week, the state Supreme Judicial Court ordered that jailed defendants eligible for public defenders be freed after seven days if an attorney cannot be provided them. The court also ruled that criminal charges against bar advocate-eligible defendants be dismissed "without prejudice" after 45 days if no lawyer will tackle the cases.
And the local judges have been following through:
On Monday, a judge ordered the release of three suspected drug dealers because the state had failed to provide them with legal representation.
and there are further releases pending:
a Superior Court judge [is] consider[ing] whether to release 14 more accused criminals who were denied access to a lawyer
Local law enforcement and prosecutors are squawking:
"Someone is going to be murdered, raped, or robbed, and what are we going to say to the victim's family?" Hamden district attorney William Bennett said at a news conference in Springfield.

"Armed predators are being released right back into the neighborhoods," said Springfield Police Chief Paula Meara, one of 14 police chiefs who appeared with Bennett. "Babies and children are going to get caught in the crossfire. This is poor public policy."
The State Attorney General decried the SJC's ruling and offered that instead of releasing people from jail their cases should be shunted to the PD's offices:
Saying that prosecutors routinely handle twice as many cases as public defenders, Reilly said that the court should have ordered lawyers for the committee to take a heavier caseload before taking the "extraordinary step" of ordering lawyerless defendants to be released without bail after seven days.

Public defenders are limited to 30 cases at a time under their own rules.

"You can't just walk away from your responsibilities," Reilly said.
In the same article, this is rebutted:
William Leahy, chief counsel for the Committee on Public Counsel Services, defended the caseload levels yesterday, saying that public defenders have much less office and investigative support than prosecutors. In Springfield, he said, 10 public defenders share two secretaries and one part-time investigator.

"It's apples and oranges," he said. "To suggest that the function of a prosecutor supported by a whole law enforcement network is in any way comparable to the work of a public defender is absurd."

In general, Leahy asserted, Reilly's office has been "completely unhelpful" in efforts to resolve the state's public defender crisis, despite being a defendant in the Hampden County lawsuit.

"They have had nothing but criticism," Leahy said. "For them to be involved in Monday morning quarterbacking after being in the Sunday game is profoundly disappointing."

Leahy also pointed out that his office never requested that the SJC release defendants, but instead asked the high court to order higher pay for court-appointed lawyers, which the justices declined to do.
Now the governor has gotten involved and is trying to get indigent defense taken away from the judicial branch and placed in the hands of the executive branch (because we all know there's no conflict when the same branch accuses and defends). On top of that he's threatening to ban those who won't take underpaid work permanently from ever being assigned underpaid work:
If given oversight of the Committee for Public Counsel Services by the Democrat-controlled Legislature, Romney said, he would force lawyers to choose between accepting new cases at current rates or be banned from doing such work in Massachusetts.
The silliness of that position was quickly pointed out:
William J. Leahy, chief counsel for the committee, dismissed Romney's vow to blackball court-appointed lawyers who refuse cases.

"The threat to bar lawyers who are already leaving the program in droves is not likely to be the solution," he said. "That would have the effect of making a bad situation worse."
The governor likens the fact that attorneys are refusing to take work at substandard pay to a police strike - "a strike against public safety."

[comment] Unfortunately for the governor et al. that pesky Constitution denies him the ability to force people into involuntary servitude. Dang shame. Of course, if he gets his way he'll just swamp all the PD's and pretend there's no problem.

And it's not the attorneys who are putting anyone in danger, or the judges - it's the Legislature underpaying and even providing faux pay. We get faux pay here in Virginia too; theoretically my cap on misdemeanor pay is $120 but the Legislature only funds $112. Think I can pay my creditors with the faux $8?

For those of you who aren't lawyers, $30 a hour looks like good pay. It is if it's a wage but this is not a wage. Before the lawyer can take any of that money for himself he must pay his secretary, his office rent, his insurance, costs of office supplies, costs of utilities and phones, the double tax that everyone who is self employed pays, etc. It takes a huge bite out of that initial dollar amount.

As to what the SJC did, I must say that I'm pretty amazed. It avoided going into the Legislative realm when it refused to increase fees (in Massachusetts of all places, who'da thunk it?). It avoided going into the Executive realm by not ordering non-prosecution of minor crimes and making the charges dismissed without prejudice so that the prosecution can bring them back at any time, once the situation is fixed. It stayed in the Judicial realm ordering unsecured bonds and dismissals, both of which are clearly within the power of the courts.

Hmmm . . . One wonders, if this is such the disaster that it is being made out to be, why hasn't the governor called the Legislature back in session to fix the situation by raising fees to an equitable rate so that those dastardly criminals are no longer set free?

1 comment:

carpundit said...

Actually, some of the lawyers can be forced to work, and are being forced to work.

A Hampden County (the Massachusetts boondocks) Superior Court Judge ordered bar advocates to take cases. The SJC (highest state court) upheld the order.

In Hampden County, attorneys registered for the bar advocacy program as of August 3 can be forced to take cases (at the $30 rate) under threat of bar sanction. Although I am not (and never will be) a participant in the bar advocacy program, I believe a condition of participation is agreeing to take cases assigned to you whether you want them or not.

Yes, they should be paid more. But they knew the rates when they signed up. A "strike" is unacceptable. I've addressed this at my own site (plug coming) carpundit.typepad.com.