Gideon Alert: MA Prosecutors Argue for Parity with Public Defense Providers

BY David Carroll on Tuesday, October 19, 2010 at 12:00 AM

On October 13, 2010, nine of the eleven Massachusetts elected District Attorneys held a press conference in the state legislature to alert policy-makers to what they call an imbalance in criminal justice funding.  Arguing that the Committee for Public Counsel Services (CPCS) receives $168 million per year while prosecutors receive only $92 million in state funding, the Massachusetts District Attorneys Association (MDAA) argued in a letter that reallocating CPCS’ budget to the DA’s offices would properly “reflect the public’s priorities and values… without asking the taxpayers for a single new dollar.”

CPCS delivers indigent defense services primarily through an assigned counsel system.  Unlike most jurisdictions in this country, the Massachusetts legislature created a system that embodies the vast majority of the ABA Ten Principles (To learn more about how CPCS meets national standards please see U.S. Department of Justice, National Institute of Justice’s Implementation and Impact of Indigent Defense Standards).  

Private criminal defense attorneys interrupted the MDAA press conference arguing that the district attorneys’ are attempting to sway public opinion by offering policy positions they know to be disingenuous. For example, one of the reasons why Gideon v. Wainwright determined that defense lawyers were “necessities” rather than “luxuries” was the simple acknowledgement that states “quite properly spend vast sums of money” to establish a “machinery” to prosecute offenders.  This “machinery” includes federal, state and local law enforcement (FBI, state police, sheriffs, local police), federal and state crime labs, state retained experts, etc.  Public defense systems must cover the cost of their own investigations.  The DA’s also failed to account for money obtained through drug forfeitures/seizures and federal grants. Therefore, it is inappropriate to compare prosecutors and public defense budgets from state general funds without including the full cost of law enforcement and other funding sources.  Additionally, the defense bar argued, CPCS handles tens of thousands of civil cases (termination of parental rights, etc) that DA’s do not handle.

The MDAA do look like they are selectively presenting facts when they make the case that CPCS’s budget “has exploded” (an increase of 230% over eight years) while “public safety has been cut” without mentioning the court case that triggered an increase in the CPCS hourly rate.  In Lavallee v. Justices in Hampden Superior Court petitioners claimed that the chronic underfunding of the assigned counsel system resulted in “an insufficient number of attorneys willing to accept assignments” at the then current compensation rates of $40/hour.  Although the Court declined to raise compensation rates – a remedy sought by petitioners - they did agree that defendants were being denied their constitutional right to counsel due to the lack of attorneys willing to staff arraignment parts because of the low rates.  The Court then ordered that pre-trial detainees be released after seven days if no counsel was appointed and charges be dismissed after 45 days.  With a fear that potentially violent defendants were to be released on to the streets, the hourly compensation rates were raised by the legislature that in turn led to the increase in CPCS’ budget cited by MDAA.

Perhaps, just as troubling, the prosecutors made claims that Massachusetts was far outspending its neighboring states on indigent defense, specifically naming Rhode Island. Yet, on September 16, 2010, the U.S. Department of Justice, Bureau of Justice Statistics (BJS) released results from its 2007 public defender survey which reveals that Rhode Island reportedly had the highest workload of any state-based public defender system, with a mixed felony/misdemeanor caseload of 391 per attorney (or, 42% above the mixed workload standard of 275 used in the BJS calculation).  To meet national workload standards the Rhode Island Public Defender Office would need 73 attorneys.  They currently operate with 40.  Massachusetts was one of the few states cited by the DOJ report to meet national workload standards.

Though the back and forth between DA’s and defense counsel has already led the Boston Globe to editorialize that Massachusetts should move to employ more staffed public defenders in an effort to control costs, Suffolk University Law School has called for a symposium in November to rationally discuss and debate the issues raised over the past week.

Rational discussion is what is needed in Massachusetts. For example, there is little doubt that entry-level prosecutors are underpaid in Massachusetts (starting salaries as low as $37.5K per year).  Just as public defenders complain that low salaries and high student loan debt lead to high turnover and a constant cycle of hiring, training and hiring as trial-experienced attorneys seek high paying jobs, so too does this dynamic impact the ability of prosecutors to carry out their duties in an efficient and effective manner. To the extent that MDAA simply carried that message forward without relying on specious arguments, they may have been able to forge unlikely allies with CPCS and the private bar. There is no constitutional right to effective prosecutions.  Perhaps for victims there one day should be.  But there is and has been a constitutional right to effective representation for nearly 50 years.   To suggest that CPCS can be funded on par with Rhode Island or have a budget that would require CPCS to pay attorneys at pre-Lavallee compensation rates would dramatically undercut the Sixth Amendment.