Raising separation of powers concerns, the Supreme Judicial Court ruled Monday that it would be “inappropriate” for judges to order increased pay rates for defense attorneys representing indigent clients beyond the amounts provided by the Legislature.
The case — Committee for Public Counsel Services vs. Middlesex and Suffolk County District Courts — came before the Supreme Judicial Court last year. CPCS filed it on behalf of unrepresented defendants in Middlesex and Suffolk Counties.
Hundreds of cases were dismissed last year when bar advocates representing indigent clients demanded higher pay and stopped taking new cases. The Legislature agreed to a $20-an-hour raise over two years but also allocated $40 million to CPCS, with the aim of hiring about 320 public defenders and reducing the state’s reliance on bar advocates.
In a brief filed last October, attorney Rebecca Jacobstein wrote, “Two months after the rate increase took effect, the government continues to fail to meet its constitutional obligations, as literally thousands of defendants remain unrepresented, and a significant percentage of duty days remain unfilled.”
The justices wrote that the petitioner “contends that, considering the recent dearth of counsel to represent indigent criminal defendants in Suffolk and Middlesex Counties” that the court, a single justice or any trial court justice may order increased pay rates for bar advocates beyond what lawmakers decided.
“We disagree,” the opinion reads. “Because there is no evidence in the record that the Legislature’s response to the shortage of counsel (including the rate increases for bar advocates and the authorized increase in CPCS staffing) and the incentive program developed by CPCS, together with the existing Lavallee protocol ordered by the single justice, are insufficient to maintain a constitutionally adequate court system, and because there has been no showing that attempts at remediation have been exhausted, it would be inappropriate for the judiciary to order rate increases.”
“Because the petitioner has not provided evidence that the current statutory rates for bar advocates are insufficient to maintain a constitutionally adequate judiciary capable of protecting indigent criminal defendants’ right to counsel, we decline to disturb the Legislature’s funding decision,” the court concluded. They wrote that the matter is “remanded to the single justice for further proceedings consistent with this opinion.”
CPCS Communications Director Bob McGovern said in a statement that CPCS is “going to continue our advocacy efforts in the State House to ensure that the private attorneys who take our cases are compensated appropriately for the hugely important work they do for our clients.”
