E-Mail This Article to a Friend Courts of shame It’s time for the legislature to stop playing politics with justice

The rest of the nation thinks of Massachusetts as the bluest of blue states. We were the only state in the union that chose McGovern over Nixon. And we backed a host of liberal losers over their conservative Republican opponents. Carter over Reagan1. Mondale over Reagan2. Dukakis over Bush père. Gore over Shrub. And Kerry, most recently. Some may think we’re out of step. But most residents would proudly say that it’s the nation — not the Bay State — that has lost its way.

When it comes to administering justice, to running the courts, to deciding who is guilty of a crime and who is innocent, however, Massachusetts is a disgrace. The cowboys in the western Sunbelt states and the crackers and rednecks in the former slave states that once made up the Confederacy have a higher regard for the administration of justice than we do. How else do you explain the fact that Massachusetts’s judges are among the nation’s poorest paid? That public defenders are the nation’s lowest paid? That so many courthouses are filthy, with broken toilets, air conditioning that doesn’t work, and shoddy quarters for jurors to conduct their deliberations? Inadequate and uneven professional staffing is rampant. The list of shortcomings is long — and growing.

Who is to blame? There are two answers. First and foremost: the legislature, which treats the courts as political footballs. In that way, it violates the spirit of separation of powers, which holds that the judiciary — along with the legislature and the executive office — are co-equal and distinct branches of government. By diabolically punishing the judiciary for decisions it doesn’t like, and by annually abusing its power to allocate funds and control spending, it keeps judges in a state of perpetual subservience. That makes it all the more difficult to resist demands that the courts be a repository for legislative patronage. To complain or to lobby vigorously to reverse this state of affairs is to risk sure and swift financial retaliation. As a result, what is already bad gets even worse.

In a more fundamental way, however, we are all to blame. By failing to demand that the legislators we elect provide the courts with resources suitable to a civilized society, we all share in the shame of Massachusetts. As residents of a state with the nation’s oldest constitution (written by John Adams, no less), we disgrace our birthright and our heritage by allowing this sorry state of affairs to continue.

And continue it will. Within a few days, it should become apparent that our criminal-justice system again will have slipped into crisis, as it almost did last year. Because the rates of pay are so low, too few lawyers have signed up to represent indigent defendants — those accused of crimes who do not have the funds to hire lawyers to defend them.

This spring, a special commission convened in the wake of last year’s debacle recommended that the base rate for public defenders be raised from $37.50 to $50 an hour. The bill that would make that recommendation law is now in the House Ways and Means Committee, awaiting action so that it can move on to the full House and then the Senate for action. Hopes are high that the bill will pass and be signed by Governor Romney. But in the meantime, as David S. Bernstein reports (See "Unacceptable, but Okay for Now," This Just In, News + Features), those accused of crimes cannot have bail hearings, which means that they can be held — that is, jailed — for only seven days. After that, they must be released.

In other words, we are gambling with justice — playing roulette with the right to a fair trial and imprisoning people because they cannot afford effective, fairly paid legal counsel. If the bill lingers, is watered down, or is vetoed, the system is screwed even further: judges will have no choice but to order those who stand accused but who have not been assigned lawyers to be released. Among those will be the innocent as well as the seriously violent. The cries that will result from the cheapest political hacks and the gutter elements of the press will distort the truth of the situation. The courts will be portrayed as insensitive victimizers, rather than as the institutional victims they are. If the bill does pass, then what happens with the judges’ pending pay raise — their first in five years? Will their legitimate needs still be ignored? Whatever happens, the situation stinks.

Calculating the stench is an awesome undertaking. Legislative meddling and micromanagement of the courts is so pervasive that it constitutes a special sort of corruption that debases the very idea of an independent judiciary. That perversion of John Adams’s intent is at the heart of House Speaker Salvatore DiMasi’s recent power play, which increases the legislature’s power to appoint cronies to court-system jobs and severely limits the ability of the court system to manage its own courthouses. Because Justice Robert Mulligan, who enjoys a reputation for integrity and seriousness of purpose, failed to buckle to DiMasi’s wish that he reappoint Superior Court judge Suzanne DelVecchio, a jurist better known for her political gamesmanship than her legal abilities, as chief justice of the superior court, DiMasi has wreaked his revenge through the budget. In the process, the Speaker has compromised — if not destroyed — several years of reform efforts and violated the spirit of recommendations to improve the administration of the courts and the quality of justice made in the past by the likes of the late Watergate prosecutor and federal appeals-court judge Archibald Cox, and more recently by Boston College’s chancellor, the Reverend J. Donald Monan, who headed a blue-ribbon commission that recommended reforming the courts and insulating them from political interference.

That is the reality of the way justice is administered in Massachusetts. It’s blue news for a blue state. It’s enough to make thinking people see red.

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