Fair pay for assigned counsel benefits all of us

Issue Februray 2004

"The true measure of a civilized society is how it treats people accused of crimes."
- Winston Churchill

Against a backdrop of vitriolic remarks, a summit of sorts took place on a snowy Saturday afternoon in December at the Middlesex County Courthouse in Cambridge. The topic of the summit was legal representation for indigent criminal defendants in the Commonwealth of Massachusetts. In attendance were Daniel Winslow, legal counsel to Governor Mitt Romney; representatives from many of the bar advocate programs across the commonwealth; representatives from the Committee for Public Counsel Services; Renee Landers of the Boston Bar Association; and me. The purpose of the summit was to move past the prior antagonistic comments and exchange ideas and information regarding compensation for bar advocates.

Two distinct but interrelated issues have caused this issue to come to the fore. First, there have been substantial delays in bar advocates receiving payment from the commonwealth for work already performed. Second, bar advocates in the commonwealth continue to be grossly underpaid for the challenging work they do on behalf of many of the most vulnerable in our society.

Not surprisingly, an issue involving paying lawyers with tax dollars to represent criminal defendants is not the most politically attractive. This is particularly true in our legislative community during these tough economic times, and with an administration whose statements suggest only a minimal appreciation of the need for the judicial branch and a simplistic view that divides our citizenry into either "givers" or "takers." Unfortunately, these elements have combined to create an inhospitable climate for attorneys who do this thankless and difficult task.

It is somewhat ironic that the 40th anniversary of the landmark Gideon v. Wainwright United States Supreme Court decision was celebrated earlier this year. As eloquently stated by Justice Hugo Black in the majority opinion in Gideon, "the assistance of counsel is one of the safeguards … deemed necessary to ensure fundamental human rights of life and liberty. Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth."

In the 40 years since Gideon was decided, there are few who would question that need for counsel when one's very liberty is at stake. Fortunately, there also are few who would deny that our civilized society has a responsibility to our downtrodden to provide them counsel when they are financially unable to obtain that assistance. Providing a right to counsel and society's payment for that counsel when an accused's financial condition requires it are necessary components for the preservation of liberty and freedom for us all.

Clearly, there can be no debate that those attorneys who have already performed these services should and must be paid in a timely manner. I am pleased that both the legislature and the governor have recently indicated support for a supplemental appropriation that will allow timely payments to continue through the end of the fiscal year in June. For the future, it is also encouraging to see recognition of this need by the governor and Mr. Winslow in their consideration of providing a retainer to be paid in advance to bar advocates. We are all hopeful that this timely payment issue will not resurface again.

The far more challenging issue at the present time is to somehow get to a fair rate of pay for bar advocates. Currently, the compensation rate to bar advocates in the Commonwealth of Massachusetts is the third lowest in the nation. Bar advocates are paid $39 per hour for Superior Court cases and Superior Court and Youthful Offender appeals cases as well as Sex Offender Registry, Care and Protection and certain civil cases. Pay is lower, at $30 per hour, for other cases such as those heard at the District Court or involving Bail Review and CHINS. And when attorneys are assigned murder cases or murder appeals, their earning is capped at $54 per hour. These rates trail nearly every other industrialized state. We also trail Texas and Alabama, states not generally thought of as zealous guardians of the rights of criminal defendants.

Further, the rates in Massachusetts have only been minimally increased since 1984. Since that time, both the average per capita income and the consumer price index have nearly doubled. Expenses incurred by attorneys to keep their offices open, the lights on and their employees paid have undoubtedly grown proportionately.

This anomaly is worsening and has reached critical proportions. Indigent criminal defendants and more broadly, our societal goal of preserving liberty and freedom for all, are increasingly at risk.

Unfortunately, the current economic climate is such that the prospect of a meaningful increase in compensation rates is very dim in the next state budget cycle. This difficult revenue picture was acknowledged by virtually all at the summit. There followed discussions of (a) increasing revenue within the judicial system through improved collection of probation fees, (b) slicing the pie differently through a flat fee per case proposal, and/or (c) decriminalization of certain misdemeanors thereby eliminating the right to counsel in those cases. Unfortunately, each of these approaches treats only the symptoms and not the disease - a shortage of revenue.

Even more troubling is that the debate over some of these palliative measures became rancorous and accusatory. The debate also veered off into an unhealthy discourse on whether a flat fee per case approach would tempt bar advocates to shortchange their clients by quickly pleading them out regardless of the appropriateness of the plea bargain. Nevertheless, despite the occasional bristling of antagonism, the summit was a successful beginning of the bridge building that will be of critical importance down the road.

Needless to say, counterproductive squabbling when the money is simply not there is not what is needed. What is needed is increased education and information - increased education and information for the executive, the legislature and the public - on the root issue of preserving liberty and freedom for all, on the consequent issue of providing effective counsel to all, and on the ultimate issue of the fair compensation of assigned counsel. As members of the organized bar, we must pledge to keep that drumbeat going. We must work hard to create a momentum for substantially increased rates when better economic times return.

The MBA and in particular, our General Counsel Martin Healy, have consistently worked hard behind the scenes at the State House to so educate and inform the legislature and the governor's office. Hopefully, through a combination of those efforts and the efforts of attorneys interested in this issue, a more meaningful and long lasting solution can occur when the current hard times begin to fade from view.