Patrick’s Idea to Eliminate Massachusetts Public Defender System Is Unwise and Uneconomical

Gov. Deval Patrick likes to fashion himself as a typical “man-of-the people” Democrat. Except that he’s anything but that, and knows very little about the everyday workings of the “average person” on the street. That should come as no surprise to anyone, given that he’s a multimillionaire who made his money in the corporate world, but his latest legislative proposal concerning legal practice only underscores his cluelessness about real world economics, and the way state government really, actually works.

Patrick’s latest proposal revolves around how indigent criminal defendants are provided legal counsel in Massachusetts. As anyone who’s ever heard of the Miranda Rights knows that if a person is charged with a crime in any state in the United States, and cannot afford an attorney, one will be provided for him or her free of charge. Different states fulfill this federal requirement in different ways. In Massachusetts, for decades now, defense lawyers for indigent criminal defendants have been provided almost completely by a network of private attorneys, who are contracted with the state to provide these services. The agency that administers this program is called the Massachusetts Committee for Public Counsel Services (“CPCS”,) and operates under the Massachusetts Judicial Branch.

These attorneys, known as “Bar Advocates”, must first complete appropriate CPCS training and certification requirements before they can become eligible to represent indigent criminal defendants. It is Bar Advocates who defend 90% of indigent defense cases in courtrooms across the state, from Pittsfield to Provincetown; Methuen to Martha’s Vineyard. The other 10% of these cases, the vast minority, are handled by lawyers who are full-time state employees, complete with annual salary and benefits. Private duty Bar advocates are paid anywhere from $50 to $65 per hour, to defend people charged with a variety of crimes, 99% of which can land them in jail for anywhere from a day to life. However, court-appointed attorneys also represent indigent clients in extremely important non-criminal cases, such as representing families that are involved with the Department of Social Services, and people who are at risk of civil commitment and forced medication.

As a Norfolk County criminal defense lawyer, I used to be a Bar Advocate, and I know first-hand how hard these attorneys work and how devoted they are to the clients they are appointed to represent. Given that most criminal defense lawyers charge much more than what Bar Advocates are paid, these services are a bargain for the state. Not so, according to Gov. Patrick. He wants to create a new state bureaucracy (operating under the aegis of the Executive Department, not the Judiciary as CPCS now does,) staffed with 1,000 full-time lawyers to provide these services – each receiving a full-time salary and benefits. In total, the new agency could employ as many as 1,500 employees.

Not only is this a foolish use of state money, it is the more important issue of the quality of legal services that indigent defendants would receive under such a scheme, which makes the case against the proposal. Indigent criminal defendants would cease to become clients of individual attorneys with whom they have a unique attorney-client relationship and who are dedicated to their defense; they’d become numbers in a bureaucratic nightmare. Have you ever tried to deal with a state agency? If you have any doubts about how such a new agency would operate in the real world – not the high-minded, theoretical one envisioned by Gov. Patrick, but the real, everyday world – think of the Wal-Mart of criminal defense services. Is that what you’d want for yourself or someone you care about, if you were in such a situation? If you lost all your money today, were charged with a crime tomorrow and needed a dedicated defense attorney to defend, is this what you’d want? Supporters of this plan should think about that, long and hard.

This plan should stop before it starts. The Massachusetts Association of Court-Appointed Attorneys plans to fight this proposal vigorously, and I wish them well. Everyone concerned in this debate – principally criminal defendants who cannot afford attorney, as well as taxpayers, will be better served if the idea is dropped now.

More stringent financial screening of defendants claiming indigency, to assure that these services are being provided to people who truly don’t have the money to pay for a private attorney? Absolutely. Demolish the present CPCS/Bar Advocate system and replace it with massive state bureaucracy that will surely deliver inferior legal services to people threatened with imprisonment? No way.