Gov. Patrick Pushes for Major Overhaul of Criminal Defense System
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.