Under the Sixth Amendment of the U.S. Constitution, all criminal defendants are guaranteed the right to a lawyer. It’s a cornerstone of the American judicial system — a fundamental right to a fair trial, regardless of whether or not you can afford legal representation.
But here in Massachusetts, a growing crisis in the criminal legal system has reached a boiling point. Hundreds of bar advocates are refusing to take on new cases, citing unsustainable workloads and low pay.
The work stoppage, as it’s called, leaves many people charged with crimes without legal representation. Again, under the Sixth Amendment, the right to a lawyer is not optional. It’s a constitutional guarantee.
In a landmark decision, the state’s Supreme Judicial Court has ordered that the defendants who have been without representation for seven days must be released, and if they still don’t have representation after 45 days, charges must be dismissed without prejudice.
It poses a unique challenge of figuring out what happens when the justice system can’t meet its most basic guarantees. Radha Natarajan, executive director of the New England Innocence Project, joined GBH’s All Things Considered host Arun Rath to discuss. What follows is a lightly edited transcript of their conversation.
Arun Rath: Before we talk about the work stoppage, I want to make a clear distinction that I didn’t even fully understand. Public defenders are government employees who work for a public defender’s office. That’s what typically comes to mind when you think of a court-appointed lawyer.
But Massachusetts sort of sidesteps this and opts for what are called “bar advocates” — essentially, independent contractors. Could you explain that a bit more, and why Massachusetts does that in the first place?
Radha Natarajan: In Massachusetts, 20% of the cases of indigent folks who are charged with criminal offenses are represented by staff public defenders — so the state public defender agency — and 80% of the people charged with crimes who are indigent get appointed bar advocates.
Bar advocates are the folks who are privately contracted; they have their own law practice and decide to do some of their work through court-appointed cases. Lots of other states have a dual system, in that there’s some percentage of folks who are staff attorneys or who are public defenders, and then there is another set of folks who are court-appointed attorneys who are called something else. But here, they’re called bar advocates.
Rath: So, let’s say you fall into that 80% group. You’re an individual with no means. You’re arrested and charged with a crime. What now happens when you’re in that situation and you don’t have your constitutionally guaranteed legal representation?
Natarajan: Well, there are so many things that happen. In the immediate, first, I think it should be understood that when someone is arrested for a crime, it is one of the most devastating, life-altering moments — just that moment of arrest and detention.
We’ve certainly seen, I think, even more recently in the public eye, what that arrest circumstance looks like on the immigration side, because there’s so much video and social media, but that happens on the criminal legal side as well. You are arrested, and you are taken, and you can either be held or you can be released, but you were charged with a crime.
At that moment, most people do not know what is going to happen to them and how they can defend against these charges. They are, of course, at this moment, presumed innocent. Yet, when they come to court, which is a very scary place for people, they don’t have someone who is going to walk with them through this process.
So, two options: basically, more simply, is that if you are arrested, you can either be released and be free while your charges are pending, or you can be held in pretrial detention. For the folks who are being detained, they will have a lawyer who represents them for the purpose of that initial hearing, but then they lose that lawyer because of the work stoppage. And then, the person is held — if they’re held, they’re in custody.
The decision by the Supreme Judicial Court is that people cannot be held longer than seven days without an attorney, and so that seven-day [period] reflects how long you can be held pretrial in detention without an attorney before you have the right to a hearing to examine those circumstances.
But then, there are a lot of other folks who are charged with crimes, they’re released, but then they don’t have an attorney to help them. What’s important to understand is that these initial days — whether you’re held or not — are absolutely critical to someone’s life. If you were held, you can imagine it impacts your housing, your children, your health — I mean, so many things are disrupted — your job. So many things are disrupted by your detention, and you don’t have someone, an advocate, who can assist you in trying to mitigate that or try to figure out a way to allow you to regain your freedom.
A competent lawyer immediately begins thinking about the case and trying to, for example, make sure that they preserve evidence that can prove innocence later, like surveillance footage. If something happens and your client tells you, “I need you to go get this surveillance footage because it can prove that I wasn’t there,” or “I was somewhere else,” if you don’t have an attorney, you can’t do that. And after just a few days, that footage — sometimes 24 hours — that footage can be deleted.
What you’re seeing is that without an attorney, people are losing the very ability to defend themselves, and remember, again, that all of these folks are presumed innocent.
Rath: Moving beyond that — I mean, that’s quite an eye-opener into the first week that we were talking about — if it does continue, what about this 45-day limit in terms of dismissing charges? How would that work? Is that in the works?
Natarajan: So, we have started hearings for the folks who have been incarcerated and pre-trial detention for seven days. There have been hearings related to their releases. We haven’t yet started the hearings for folks who have been without counsel for 45 days, but who are charged. We don’t know the number of cases that are going to be dismissed, but that is part of the protocol.
One thing to know, though, is that those cases are dismissed in what’s called “without prejudice,” and that means that though they are dismissed, at some point later, a prosecutor can refile those charges, and they can be in jeopardy again for the same case. The thing that is really distressing and problematic about this is that so much time can pass without having counsel to investigate their cases, to speak to them. You can lose witnesses, you can lose evidence … You can literally lose the ability to defend yourself.
So, yes, the charges are dismissed. They may be dismissed forever because the decision to prosecute cases is in the hands of a prosecutor. But on the other hand, [the prosecutors] have the right to bring them back again. At some other point, we may be talking about a crisis that kind of comes in waves — you know, this part of the crisis, but then you might have a crisis where cases start to come back, and we’ll have a different crisis of people really not being able to adequately defend themselves.
There are many layers to this, but that’s how that would work after the 45 days.
