Major Reform Legislation Passed in Massachusetts
The following is an excerpt from TSG’s, “Indigent Defense
in Massachusetts: A Case History of Reform.” To read the entire
article, which includes more detail on the Arianna systemic lawsuit
and TSG’s involvement in the suit, please contact Jennifer Saubermann
at jsaubermann@spangenberggroup.com.
On July 29, 2005 the Massachusetts Legislature made significant systemic
changes to the Massachusetts system of indigent defense and substantially
increased the appropriation for indigent defense services. A bill
was passed that increases hourly compensation rates for court-appointed
counsel, significantly expands the statewide public defender program,
strengthens indigency verification procedures and establishes two
new commissions, one to study decriminalization and one to examine
alternative revenue sources to fund indigent defense. The changes
came after years of pressure on the Legislature to increase compensation
rates for court-appointed counsel by the organization that oversees
indigent defense and the organized bar. The major catalysts for change
were two lawsuits filed with the highest court in Massachusetts challenging
the constitutionality of the provision of indigent defense services,
a shortage of qualified court-appointed counsel resulting in hundreds
of indigent defendants left without counsel, and the recommendations
of a legislative commission charged with evaluating Massachusetts’
indigent defense system.
Massachusetts' state-funded Committee for Public Counsel Services
(CPCS) is a fifteen-member body established by statute to oversee
the provision of legal representation to indigent persons in the Commonwealth.
Legal representation of indigent defendants, parents and children
is provided by a hybrid system of approximately 2,400 private attorneys
(called bar advocates) and a full-time, staff public counsel division
with 13 regional offices and approximately 110 staff attorneys handling
criminal cases. Pursuant to statute bar advocates are appointed in
the majority of district court cases, which include misdemeanor cases
and initial appearances in some felony cases, and provide representation
in children and family law cases. Bar advocates work under annual
contract with CPCS. The public defenders represent criminal defendants
only in superior court or felony-level cases.
By statute, the Committee for Public Counsel Services is responsible
for establishing compensation rates for court-appointed counsel; however,
the rates approved by CPCS are subject to appropriation by the Massachusetts
Legislature, and the legislature routinely appropriates funds for
rates lower than those approved and requested by CPCS. Until 2005,
the hourly compensation scheme under which assigned counsel in Massachusetts
were paid was one of the lowest in the country and had remained essentially
the same since 1986. Prior to August 2004 the rates paid to assigned
counsel remained at: $39 an hour in care and protection cases; $30
an hour in CHINS cases; $54 an hour in murder cases and murder appeals;
$39 an hour in mental health cases, superior court cases and superior
court appeals; $30 an hour in all other appeals, and in district court
criminal cases, juvenile court delinquency cases, bail hearings and
bail reviews, and sexually dangerous person reviews.
In early May, 2004, after two days passed where no attorneys appeared
in Hampden County (Springfield, MA) to accept new criminal court assignments,
and at least 19 indigent defendants were being held in custody without
counsel, CPCS, joined by the ACLU, filed a petition in the Supreme
Judicial Court (SJC) on behalf of unrepresented indigent criminal
defendants in Hampden County. Nathaniel Lavallee, et al. vs. The Justices
of the Springfield District Court, 442 Mass. 228 (2004). Prior to
the SJC’s decision in Lavalle, the law firm of Holland &
Knight, working entirely pro bono, filed a petition in the SJC alleging
that Massachusetts system of indigent defense was unconstitutional.
Arianna S., et al. v. Commonwealth of Massachusetts, et al., SJ-2004-0282
(filed June 28, 2004). Unlike the Lavalle suit, which was filed on
behalf of indigent defendants in Hampden County only, Arianna was
a systemic statewide suit that included not only criminal defendants
but child welfare cases as well.
On July 28, 2004, the SJC released its decision in the Lavallee
case. The court concluded with “no difficulty… that
the petitioners’ constitutional right to the assistance of
counsel is not being honored.” The justices urged the judicial,
executive and legislative branches to work together to fashion a
permanent remedy for what the court categorized as “a systemic
problem of constitutional dimension.” To provide an immediate
remedy, the SJC ordered trial courts to dismiss charges without
prejudice for those defendants who have been facing felony, misdemeanor
or municipal ordinance violation charges for more than 45 days without
the assistance of counsel. With respect to defendants who have been
held in lieu of bail or pursuant to an order of preventative detention
for more than seven days without assistance of counsel, trial courts
were ordered to release defendants on their personal recognizance
with probationary conditions. Three defendants in Hampden County
were released pursuant to Lavallee.
On August 17, 2004, the SJC issued an order on an “emergency
basis,” allowing judges in Hampden County, pursuant to Mass.
Rules of Professional Conduct, to conscript lawyers to take court-appointed
criminal cases. Judges were allowed to appoint any attorneys they
felt were qualified, whether or not they were certified by CPCS to
take appointed cases.
In the face of a growing shortage of available attorneys to represent
indigent persons, two lawsuits, and the potential of additional defendants
being released from custody pursuant to Lavallee, the Massachusetts
legislature passed legislation in August 2004 that (1) increased by
$7.50 the court-appointed counsel hourly rates of $30 in district
court cases, $39 in superior court and child welfare cases, and $54
in murder cases, through a $16.8 million supplement to the fiscal
year 2005 budget; and (2) established a commission to study the provision
of counsel to indigent persons (“An Act Relative to Private
Attorneys Providing Public Counsel Services,” Ch. 253 of Acts
of 2004).
In April 2005, after a number of public hearings and the receipt of
numerous filings, a final report was issued by the commission. The
report recommended that the rate for all court-appointed counsel work
be increased above the $7.50 per hour raise, the state hire more public
defenders to work in the district courts and hire more staff attorneys
for child welfare cases, implement stricter indigency standards, and
that the General Laws regarding certain misdemeanor offenses (including
operation of a vehicle with a suspended license, registration or insurance;
shoplifting; disorderly person or disturbing the peace; trespassing,
and larceny by check) “be amended to more accurately reflect
the practical administration of justice in the Commonwealth, while
simultaneously yielding significant cost-savings to the taxpayer.”
In late June, the fiscal year 2006 budget passed without additional
appropriations for increased compensation rates and no bills were
passed implementing the commission’s recommendations. A House
amendment was filled to increase the compensation rates for the bar
advocates and the matter was referred to the Judiciary Committee.
After extensive testimony the Committee reported favorably on the
amendment; however, the Legislative session ended without action.
On July 1, 2005, many bar advocates across the state declined to renew
their annual contracts to provide representation in indigent defense
and care and protection/family law cases. A shortage of attorneys,
particularly in criminal cases, was felt by courts across the state
and at one point nearly 500 defendants who were entitled to appointed
counsel were without counsel. On July 29th a bill was finally passed
that raised the rates of compensation to $50 per hour in district
court, CHINS, children and family law, care and protection, sex offender
registry and mental health cases; $60 per hour in superior court non-homicide
cases including sexually dangerous persons cases; and $100 per hour
in homicide cases, and the rates were made retroactive to July 1,
2005, the start of the fiscal year. The bill created 11 pilot public
defender programs each with 10 attorneys, one investigator and two
support staff handling district court cases. CPCS was also told it
could hire an additional 20 attorneys to handle children and family
law cases and juvenile court cases.
A further provision of the legislation stated that commonwealth attorneys,
defendants or the court may, unless the commonwealth objects in writing,
“treat a violation of a municipal ordinance, or by-law or a
misdemeanor offense as a civil infraction” and thus counsel
is not required. When a violation of a municipal ordinance, by-law
or misdemeanor offense is treated as a civil infraction, this may
not “be used in the calculation of second and subsequent offenses
under any chapter, nor as the basis for the revocation of parole or
of a probation surrender.”
The new law also establishes two new commissions. The first is a permanent
commission to study the possibility of decriminalizing certain misdemeanor
offenses. Specifically, the commission is tasked with studying and
analyzing “the imposition of civil penalties on certain offenses.”
The other is a temporary commission that must submit a report to the
Legislature in March 2006 to, among other things, study the feasibility
of implementing a “dedicated fee, multiple fees, surcharge or
combination thereof to be used for the purpose of providing counsel
to indigent persons….” This includes an additional fee
for all members of the Massachusetts bar and a surcharge on parking
and traffic citations. (Chapter 54 of the Acts of 2005.)
Although it will be impossible to immediately evaluate the success
of the reforms implemented, the changes lay a responsible framework
for providing adequate resources for indigent defense services in
the most cost effective way. Significant indigent defense reform cannot
occur without additional expenditures. The increased cost for fully
funding the new changes will not be known for some time. It is estimated,
however, that the legislature will need to appropriate an additional
$34.5 million, on top of the $120 million initially appropriated for
fiscal year 2006, to fully fund its new mandate. This is an increase
of 58 percent over a two year period. Massachusetts’ enacted
legislation holds potential as a model that addresses the need to
provide adequate resources while evaluating ways in which to contain
costs. The path taken to achieve this result is a model of collaborative
and complementary advocacy.
For more information contact tsg@spangenberggroup.com
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