Earlier this month three men charged with felonies walked out of the Hampden County courthouse in Springfield, Mass. They were released because they didn't have lawyers, and they didn't have lawyers because no one in Hampden County was willing to represent them—at least not at what the county was paying: an hourly rate less than one-tenth what a first-year associate bills at a big Boston firm. The Constitution, of course, doesn't talk about money, but it does guarantee the effective assistance of counsel.
With hourly pay rates for representing indigent alleged criminals the lowest in the country, Massachusetts has been flirting with an indigent-defense disaster for some time. But with lawyers in several counties refusing to take on additional criminal cases, the state's assigned-counsel system is officially in crisis. And although underfunding is always an issue in indigent-defense systems, it is rarely the only problem. The real issue is the kind of indigent-defense system Massachusetts is buying—not how much they pay for it. The focus on pay rates is an unfortunate side effect of leaving the defense of the poor to languish as a low priority. The way the Massachusetts crisis came about, and the narrow terms of the current debate, should be a cautionary tale for policy-makers across the country—many of whom will soon be confronting similar questions.
There are two ways for governments to provide criminal representation to the poor: The first is a public defender or legal aid system. The state establishes an office designed to provide services, either on a contract basis or as an arm of the government itself. The other way, sometimes used exclusively and sometimes in combination with a public defender, is to pay individual lawyers to take particular court-appointed cases. These lawyers bill the government by the hour for their services. In Massachusetts, these lawyers are known as the private counsel division of the committee for public counsel services, and they represent about 80 percent of the state's indigent-criminal defendants.
Assigned-counsel plans exist in almost every state. In Massachusetts, panel lawyers make up the bulk of the criminal caseload. States like assigned-counsel systems: They are cheap and easy to administer. In states that allow judges to assign cases to specific lawyers, this dependence on judicial handouts regularly leads to a disturbingly felicitous you-scratch-my-back-I'll-scratch-yours kind of collegiality. And an hourly billing system creates incentives for lawyers to load up on cases, plead out as many as possible as quickly as possible, submit a bill, and call it a day.
In the rarefied world of the legal profession, public defenders are pathetic fiscal underachievers. Many of those who do this grueling day-to-day work do so for nonmonetary reasons. This is convenient, since in the parallel world of political decision-making, few causes are less likely to win funding battles than increasing the money funneled to lawyers representing indigent criminal defendants. The confluence of these two factors yields systems like the one in Massachusetts—in which the rates paid to lawyers representing poor people charged with crimes hasn't changed much in the last 20 years.
A few months ago, frustrated with the low pay, about 50 lawyers (most in Hampden County), decided they could no longer afford to take on new assigned-counsel cases. This sort of thing has increasingly happened around the country. Earlier this year, after a lawsuit and much political wrangling, the state of New York raised rates paid to lawyers on the assigned-counsel plan from $30 an hour to $75. Virginia and North Dakota have also debated assigned-counsel rates this year. In Massachusetts, the issue came to a head on July 28 when the Supreme Judicial Court issued a ruling ordering the release of criminal defendants who did not get a lawyer within seven days and dismissal of charges against any defendants left without counsel for 45 days. Nothing gets a legislature's attention like the imminent release of a bunch of alleged criminals.
The legislature quickly passed a token rate increase of $7.50 an hour, which didn't appease lawyers much. Republican Gov. Mitt Romney then rolled out the big guns, asking the legislature to let him take control of the assigned-counsel system—a move that would give him greater authority over individual lawyers as well as greater flexibility in shifting cases from one system to another. The governor also threatened to force lawyers to either accept a lifelong ban on assigned-counsel work or accept new cases at the current rates; neither a particularly new nor a particularly smart tactic. Fearing additional releases, The Supreme Judicial Court issued an order giving lower courts greater flexibility to draft lawyers to represent poor people.
Few lawyers actually want to do criminal defense work. In a world in which there is an ocean of need, few fancy lawyers looking to scratch a pro-bono itch rush to pick up criminal cases. Most big-firm lawyers see criminal defense work as complicated and often morally compromised; rife with overcrowded courthouses and filthy jail cells. Civil pro-bonowork is just a lot cleaner—and more prestigious. As a consequence, states can't rely on pro-bono representation to do any of the heavy criminal legal lifting. And that leaves almost all of the work to the practitioners who take court assignments and make their living practicing criminal law.
For indigent criminal defendants, low-paying assigned-counsel systems like that in Massachusetts offer the worst of all possible worlds. They virtually guarantee sub-par representation, since low assigned-counsel rates almost always imply huge caseloads—a nightmare for poor defendants desperately in need of legal attention. In one terrifying example, Thomas Earl of Grant County, Wash., a former prosecutor and administrator of an assigned-counsel plan, at one point assigned an astonishing 40 percent of the county's cases to himself. When he was finally suspended, in February of this year, he had a pending felony caseload of over 400—a figure so high the courts were forced to draft nearly 50 other attorneys to pick up the slack. As an extreme example, Earl dramatizes the fact that who does the work and why they do it are more important questions than how much they are paid.
The Romney administration should consider adopting a public defender system. Salaried public defenders are usually paid far less than the private lawyers who take cases by the hour; in Massachusetts, public defenders earn a starting salary of just over $15 an hour plus benefits. And though it's true that public defenders usually insist on carrying a smaller caseload than assigned counsel, a downside from the state's point of view, there is a good reason. Public defenders—most of whom represent the indigent for ideological reasons—care about caseload as well as cash. Ardent, committed public defenders like this are precisely who the state should be recruiting. And given that the single biggest predictor of the quality of a public defender's work is caseload, manageable caseloads are in the interest of any state looking to provide good, rather than constitutionally adequate, representation.
Public defender offices provide additional benefits. Most offer ancillary services indigent defendants need including investigators, social workers, and lawyering that addresses homelessness, drug addiction, mental illness, and other problems that often bring defendants into contact with the criminal system in the first place.
Make no mistake about it: Assigned-counsel rates should rise. But raising them without a re-examination of standards or the establishment of a well-funded public defender system replete with caseload caps and ancillary services, is only burying the larger issue. As recent Massachusetts history demonstrates, leaving the budget and quality of indigent defense in the hands of the political process is likely to produce a system of underfunded inadequate representation—something no one cares much about, at least until the innocent are exonerated, or the next arrested felons are let go.