Gov. Patrick Pushes for Major Overhaul of Criminal Defense System
Feb 10, 2011
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Governor Deval Patrick
Last week Governor Deval Patrick announced an ambitious plan to eliminate Massachusetts’s Committee for Public Counsel Services (CPCS) system and replace it with a new agency under the executive branch staffed entirely with full time public defenders. This overhaul, motivated by the governor’s desire to cut costs and reduce government spending, will eliminate Massachusetts’s practice of appointing private attorneys to represent indigent criminal defendants, and instead assign those cases to a new government agency under the governor’s control staffed entirely with fulltime public defenders. The fiscal (and moral) responsibility of such a move is highly contested by lawyers and lawmakers alike.
As required by the U.S. Constitution and Gideon v. Wainwright, the state must appoint a criminal defense attorney for any criminal defendant who cannot afford one. Massachusetts, unlike most other states, uses a mix of public and private attorneys to represent those indigent defendants. The current CPCS system, which is currently under the control of the judicial branch, assigns representation of indigent criminal defendants to a mix of full-time public defenders and to private attorneys.
Private attorneys are assigned approximately ninety percent of the state’s indigent caseload each year. While public defenders are paid a set yearly salary, private attorneys appointed by CPCS are paid a below-market hourly wage. Private attorneys are paid $50 per hour for district court cases, $60 per hour for superior court cases, and $100 per hour for murder cases. Criminal defendants are assessed a flat fee of one hundred and fifty dollars to help pay for the costs of their state-appointed legal counsel, regardless of the disposition of their matter.
CPCS has a budget of approximately two hundred and seven million dollars and handles around two hundred thousand cases each year. CPCS currently contracts with about three thousand private lawyers who serve as bar advocates. Governor Patrick’s proposed overhaul would eliminate a substantial part, if not all, of the legal work that these three thousand private attorneys in Massachusetts perform. While those attorneys will certainly be negatively impacted by this change, it is likely that a significant number of them will join the new government agency as public defenders.
The change in the quality of legal services provided to indigent defendants by such a move is in great dispute. Some claim that the services provided by publicly-minded state employees will be more focused and devoted than the services provided by profits-motivated private attorneys. Others point out that putting all two hundred thousand cases on the hands on the public defenders alone will make them incredibly overburdened and lead to poor quality work. Overworked attorneys tend to do worse work than attorneys who get to pick and choose how many cases to take on.
While Governor Patrick is convinced eliminating CPCS will decrease the financial load on the state, others are not so sure. For one thing, the new
proposed agency, the Department of Public Counsel Services, would have to hire about fifteen hundred new staff attorneys to take on the caseload. In addition to paying salaries for those public workers, the government will have to pay for their health insurance, vacation time, retirement plans, offices, support staff, and other incidental expenses that are currently born by the private bar advocates. John Connors, a past president of the Bristol County Bar Advocates, said that “Hiring a thousand full-time employees, with all the benefits and all the support staff required, could not possibly save money… When you make government part of the solution, it never gets smaller or less expensive.” The argument goes that while the salaries for those public defenders may be less than the wages for private CPCS attorneys, the increase expense in benefits and institutional costs will outweigh the anticipated savings.
Governor Patrick claims that the overhaul will save the government forty-five million dollars per year, according to his calculations. The new government agency will take over verifying the indigency of criminal defendants, a process previously conducted by the Probation Department. This means that the executive branch will have control over who gets state-funded attorneys and not the judicial branch. Patrick’s office has indicated that the department will increase the eligibility requirements for state-appointed legal services and thereby decrease the load on the state. His office also estimates that the fee collections from criminal defendants will increase with this new system of evaluation.
The impact this overhaul will have on local communities remains understated. Those 3,000 private attorneys who will lose some or all of their paying work are productive members of local communities who spend their income on office spaces, support staff, office supplies, and other local expenses. If they are put out of business all of their business shifts to the centralized government agency, moving business away from their local communities.
The legislature’s opinion on Patrick’s ambitious plan has not yet been cast in stone. Law makers will vote this upcoming session on whether or not to move to a more centralized system for indigent criminal defense.
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A couple of questions from a taxpayer: 1) Patrick says he will be hiring 1,500 attorneys to represent criminal defendants each at a salary below current private attorneys (who work on a flat fee basis). Taking into consideration FICA, medical insurance costs, pension contributions, etc., the salaries expenses to the state will at least meet and perhaps top the flat fee now paid. In addition, hiring administrative paralegals/secretaries/file clerks and other support staff for this new department and their accompanying costs will add yet more expense to the new department (right now, the flat fees paid to private attorneys are used to cover the attorneys’ fees and overhead all in one amount-no extra contributions from the taxpayer). On top of that, each year, as raises are passed through the legislature for the employees of this new department, more money will have to be added to the budget or cut from other programs (as we all know, the flat fees to private attorneys almost never go up). 2) how are fees collected from criminal defendants going to cover any expenses – most criminal defendants in the Commonwealth cannot afford to pay an attorney, hence the need for a public bar. And, what will it cost the Commonwealth to set up a mechanism to “collect” the new fees – will we need to set up a collection department, hire collectors and support staff?
My last observation is what type of representation will the criminal defendant get when the pool of possible attorney representation is cut in half. This will only extend the time a defendant may be in the system and bring to bear more of a burden on an already overworked court system.
What about the investigators that are also paid to help defense attorneys to defend indigent clients that are paid by CPCS? Will they also be out of a job? Is the state going to hire more investigators to be state employees to work with these new state attorneys? If the investigators lose their work, they will probably not renew their PI licenses, thus eliminating the fees the state collects for their licenses. These defense attorneys often need investigators to locate witnesses, get statements, take photos, and many other functions. As one of these investigators, I can testify that not all defendants are guilty as charged. The police charge a person with a crime when probable cause exists, the DA picks up the case and its moved to the court system. Sometimes, these people are not guilty but the police are too busy to give a case a second look or to check out a defendants story. It is never OK for an innocent person to be found guilty because they received a poor defense for lack of a experienced lawyer or the lack of an investigator. As a person with 30 years in law enforcement, I was shocked when I became a PI to discover how many people were unjustly charged with crimes.
Just another thing I don’t think Gov. Patrick thought out very well.
The numbers do not have to make sense or even offer any savings, its just a plan to set up another governmental agency so he can have more places to put his friends and supporters in. Before the agency is even crated there will be a union already for it. But what do you expect from someone that took three tries to pass the MA bar exams, that takes a special talent.
Yeah well guess what, he just beat out two other candidates to get reelected. That takes special talent. Let’s see you do it.
Deval is dreaming if he thinks ANY state agency is going to cost less and give more than the hard-working defense bar that is currently in place. Let’s rethink the concept of putting criminal defense under the control of the governor! While Deval might want more control — I don’t think anyone reaallly believes he’s going to sell it on the concept it will cost less! What he’s really trying to do is appoint his pals to jobs that give nice pensions!