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Tipped scales
Romney and Reilly are shouting about justice, but will politicians ever actually address the problem?
BY DAVID S. BERNSTEIN

REPUBLICAN GOVERNOR Mitt Romney and Democratic attorney general Thomas Reilly — likely opponents in the state’s next gubernatorial campaign — are generating lots of headlines about the current crisis in the state’s courts, which finds accused criminals walking free because the state can’t provide them with lawyers. Yet neither politician is doing anything to address the problem in a serious way.

Kicking around the criminal-justice system is a perennial political favorite. Like bear-baiting in Shakespeare’s day, it elicits much hooting and hollering, but the resulting carnage accomplishes nothing — worse than nothing.

Bay State politicians of all stripes are fond of pointing out that when John Adams wrote the Massachusetts Constitution — later used as a model for the federal charter — he fathered the country’s independent judiciary. But in the twilight zone of Beacon Hill politics, that venerated principle has been severely compromised. Here, politicians control the judicial budget and impose political appointees on a hack-riddled court system.

The cause of the present crisis is fairly obvious: the state currently pays private attorneys $30 an hour to take court-appointed cases, about a sixth of what they would make for other kinds of legal work. Rather than confront this fact, Romney, Reilly, and others cast blame on everyone else, starting with the Supreme Judicial Court, which brought the matter to a head late last month by unanimously declaring it unconstitutional to indefinitely detain indigent defendants who have no court-appointed attorney. Soon after the first accused drug dealers were freed on August 9, Reilly blamed the predicament on the Committee for Public Counsel Services (CPCS), the state agency that oversees the indigent-defense system. Romney agreed, and filed a bill to shift the agency to his own control. Reilly denounced Romney’s plan. But neither raised much of a stink when House Speaker Tom Finneran announced that he would not convene the legislature to address the problem, meaning that nothing will happen with Romney’s bill, a potential pay increase, or any other solution before the next formal session — which begins after the new year.

To put the matter in context, attorneys who defend indigent clients for the state make an average of $175 an hour on their private cases, according to a recent survey by the Spangenberg Group, a justice-issues research firm in Newton. Not surprisingly, then, the number of private attorneys who participate in the system is decreasing. The CPCS also maintains a staff of public defenders, but that force is small — now at 110, down from 130 three years ago — and dwindling further due to budget cuts. The number of new indigent defendants in the state’s courts, meanwhile, has remained constant at close to 200,000 each year. Fewer full-time defenders, fewer court-appointed attorneys (called bar advocates), same caseload — well, you do the math.

Bar advocates are bothered by more than just their paltry compensation. Up until this fiscal year, these attorneys could submit their invoices for payment only at the conclusion of a case or the end of a fiscal year; this meant that every June 30, attorneys statewide filed thousands of dollars’ worth of invoices for work dating back to the previous summer. Although that rule has now been changed, other regulations promulgated by CPCS also rankle feathers, in particular one that limits billing for time spent waiting in the courthouse to one hour per day. A lawyer stuck waiting for a delayed hearing for several hours can’t leave, and gets stuck with unbillable hours.

Meanwhile, in courts across the state — not just in Hampden County, which has drawn the most attention — defendants of all kinds continue to be detained without representation. Roughly 80 people charged in Worcester County courts, for example, have no attorneys for cases involving everything from motor-vehicle violations to witness intimidation.

Even kids facing removal from their homes by the Department of Social Services are trapped. "What is a court to do?" asks Juvenile Chief Justice Martha P. Grace. She is required by law to give families a care-and-protection hearing within 72 hours of a DSS removal to determine what is best for the child — but on a recent day, she had four families in Cambridge Juvenile Court and no attorneys. "We can’t call it due process if we don’t have people to represent their interests," Grace says. Some "72-hour" hearings have been delayed for weeks. Mental-health cases are routinely delayed. So are proceedings to commit dangerous sex offenders to state custody: in the western part of the state, only two lawyers currently take such cases. The wheels of justice are grinding to a halt.

MASSACHUSETTS IS not alone with this headache. Since the US Supreme Court ruled 40 years ago that states must provide counsel to indigent defendants, no consensus has emerged on how to fulfill the requirement. Almost half the states fund the services at the state level, like Massachusetts does, while others do so at the county level or through some combination. Some have huge staffs of public defenders; others compensate private attorneys. Some states do a good job, while others are notorious for providing lousy defense to the indigent. In Texas, for example, cases have been periodically overturned because of sleeping, drunk, or incompetent defense counsel. Louisiana’s system got slapped this week by a New Orleans court for systematically providing inadequate counsel. The Washington Post and other newspapers have recently editorialized about recurring injustices in Virginia caused by low compensation for bar advocates. Indeed, the issue has become so hot that in June the Constitution Project at Georgetown University formed the National Committee on the Right to Counsel — chaired by former vice-president Walter Mondale — to address it in a coordinated manner.

As the problem has come to a boil, the state’s response has ranged from benign neglect to active belligerence. After nearly 20 years without so much as a cost-of-living increase, Massachusetts’s bar advocates are now among the very worst-paid in the country. In view of the emerging crisis, CPCS authorized doubling the rates to $60 an hour in 2002, but the legislature refused to fund the increase, and refused again this summer when CPCS tried once more. Lawmakers eventually passed a $7.50-an-hour increase last month — but they have yet to fund it.

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Issue Date: August 27 - September 2, 2004
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