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Patrick’s radical attack on CPCS a fast-track to disaster

by David M. Siegel

Published: February 10th, 2011

Professor David SiegelThe page 1 story in the Feb. 7 issue, “Governor fast-tracks radical overhaul of CPCS,” is disturbing. Former Committee for Public Counsel Services Chief Counsel William J. Leahy summed up matters well in a recent Boston Herald piece:

“Governor Deval Patrick’s proposal to destroy the independence of CPCS by abolishing its board, forcing it into the Executive Branch and personally selecting its chief counsel is a shocking betrayal of the right to counsel for poor people in Massachusetts.”

Economic difficulties demand hard choices, but indigent defense in Massachusetts ranks among the nation’s finest, and this attack will gut it, on the backs of the poor.

The proposal will require lawyers to carry crushing caseloads that will prevent them from representing clients in a manner consistent with ethical and constitutional obligations, effectively dismantling the constitutional protections constructed by thousands of lawyers and judges from the hemisphere’s oldest functioning written constitution over the past 230 years. No self-respecting attorney would want to participate in such a profoundly unconstitutional and destructive enterprise.

There should be a hearing before the Legislature’s Joint Committee on the Judiciary, at which the criminal defense bar and other experts on indigent defense programs and the defense of constitutional liberties should be given a fair opportunity to address the profoundly destructive implications of the governor’s plan.

The hearing should not be a debate between prosecutors and defense attorneys. Although the idea of abolishing bar advocates was first proposed by prosecutors, the debate is not about prosecution, but rather about the adequacy of a system to defend the constitutional liberties of the poor and thus, by extension, all of us. Prosecutors simply have no expertise to bring to the design of that system.

The hearing should consider:

Cost: Eliminating all bar advocates will cost, not save, money. With constitutionally acceptable caseloads, public defenders are more expensive than bar advocates. CPCS documented this in excruciating detail in its March 2010 “50/50 Report,” showing that the true cost of public defenders, with benefits and fringes as state employees, exceeds that of bar advocates.

The claim that this new agency will “ensure fixed costs over the state’s public defense spending” is flat wrong. The explosive rise in the cost of state employees is primarily because of fringe benefits such as health care and pensions, which the state does not provide to bar advocates. The Office of the Comptroller has calculated that the fringe benefit rate for state employees rose 6.7 percent in the past year alone.

The 50/50 Report estimated it would require 746 more lawyers just to handle half of all trial level cases in the District Court in which counsel is required. By extension, it would take 1,492 new lawyers to handle all appointed cases in District Court at the trial level, so how will 1,000 new lawyers handle all the cases, trial and appeal, in all the courts — District, Juvenile, Superior and appellate — in which counsel is required?

The answer is by taking crushing and unconstitutionally high caseloads, which will produce (1) lengthier delays in trials, which raise pre-trial incarceration costs; (2) class action lawsuits (as in Connecticut and Rhode Island), with huge litigation costs, and possibly a federal takeover of the system, all funded by Massachusetts taxpayers; (3) a massive expansion of ineffective assistance claims that will have to be pursued by bar advocates because staff lawyers employed by the governor’s new agency will not be permitted to pursue ineffective assistance claims against themselves; and (4) a greater risk of wrongful convictions, causing additional civil judgments.

The U.S. Department of Justice reported in September 2010 that Massachusetts was one of only four states whose public defender system’s caseloads met the standards of its National Advisory Commission on Criminal Justice. Why don’t we want to meet the department’s standards?

Quality: No one, outside of the governor and prosecutors, has ever criticized CPCS for fiscal irresponsibility, cronyism or systemic incompetence. Massachusetts’ indigent defense program is recognized by outside observers as a model system.

Dean Norman Lefstein, who served for nine years as chair of the American Bar Association’s Indigent Defense Advisory Group, which oversees the association’s nationwide efforts to strengthen legal services for the poor in criminal cases, describes CPCS as “the best statewide indigent defense program in the country.”

Legality: The proposal to move the agency charged with administering an indigent criminal defense system into the executive branch creates an inherent conflict of interest. The chief executive should not dictate the structure of a legal defense organization. The executive branch enforces the laws. A defender organization defends against the accusations of those charged with enforcing the laws. It is for this reason that the governor’s plan would violate the first of the ABA’s 10 Principles of an Effective Public Defender System: “that the counsel-providing agency be independent.”

Justice: Finally, the proposal will severely weaken constitutional liberties of the poorest and most vulnerable members of our society and, by extension, everyone else. Why would the governor dismantle a model agency that provides a crucial constitutionally mandated protection for our most vulnerable? How many government agencies resist a five-fold increase in staff? Doesn’t that suggest something about CPCS’s priorities?

In 2005, the “Rogers Commission” of legislators and attorneys studied the state’s indigent defense funding and recommended decriminalizing six minor, non-violent misdemeanors and activating a permanent commission to review the categorization of misdemeanors, avoiding unnecessary criminalization and its attendant cost of appointed counsel. Three of these offenses are still crimes and no such commission exists. It recommended pilot programs to expand CPCS representation in Ddistrict Ccourts, which were just fully funded last year. And it recommended improved verification of indigence, which has been implemented but not yet assessed.

These reforms don’t grab headlines like wholesale agency takeovers. But maybe careful and thoughtful improvement of a well-functioning system is preferable to throwing it away, especially when it benefits us all.

David M. Siegel is a professor at New England Law | Boston. He serves on the board of directors of Suffolk Lawyers for Justice, Inc., but does not take bar advocate appointments.

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