SJC rules Mass. must begin releasing unrepresented defendants from custody

Massachusetts criminal defendants who haven’t been appointed a lawyer must be released from jail, a Supreme Judicial Court justice ordered Thursday.

The decision comes weeks after the Committee for Public Counsel Services called on the court to implement the Lavallee Protocol, which requires the state to release pretrial defendants who aren't assigned a lawyer within seven days of their detention. After 45 days without an attorney, their cases could be dismissed.

On Sunday, there were 1,190 unrepresented defendants, 70 of whom were in custody, across the courts in Suffolk and Middlesex counties, according to a court filing from CPCS. The number has fluctuated week by week but generally has been increasing due to a shortage of court-appointed defense attorneys.

In her order, Associate Justice Dalila Argaez Wendlandt agreed the need to release defendants was warranted.

“Despite good faith efforts by CPCS and the local bar advocate organization[s], there is an ongoing systemic violation of indigent criminal defendants' constitutional rights to effective assistance of counsel due to CPCS's incapacity to provide such assistance through its staff attorneys or through bar advocates."

On May 27, private attorneys who are paid by the state to represent indigent defendants stopped taking on new work, citing low wages. The lawyers, known as “public defender bar advocates,” typically make about $65 an hour in the, the lowest rate of any state in New England.

The state Senate had considered an amendment to the recently passed state budget that would have raised the hourly rate for bar advocates to at least $100. But the proposed raises were cut during negotiations.

CPCS had also called on the court to temporarily raise bar advocates' pay rates while the Legislature considers a permanent increase. Argaez Wendlandt denied that part of the motion in her order.