Mass. high court hears arguments in public defender crisis and pay dispute

Does Massachusetts' highest court have the power to order salary increases for public defenders to protect people's constitutional right to an attorney?

That question was the thrust of oral arguments before the state Supreme Judicial Court Wednesday in a case related to a months-long dispute over pay for public defenders. The fight has left thousands of criminal defendants too poor to hire an attorney without legal representation, and it's led to the dismissal of hundreds of criminal cases.

About 900 defendants in Suffolk and Middlesex counties currently do not have defense lawyers, according to the Committee for Public Counsel Services. Since September, more than 800 criminal cases were dismissed, the committee said, due to lack of representation.

"We are in a perpetual state of emergency where people are perpetually not getting lawyers and their cases are dwindling, and they are under pretrial conditions and it's just not OK," Committee for Public Counsel Services attorney Rebecca Jacobstein told the justices Wednesday.

Since the dispute began in May, many court-appointed lawyers, known as bar advocates, stopped taking new cases to try to force state lawmakers to raise their starting salaries of $65 an hour.

The Supreme Judicial Court earlier implemented an emergency process, known as the Lavallee protocol, which requires a case be dismissed if a defendant does not gain legal representation within 45 days. If someone in custody does not have a lawyer appointed within seven days, they're released.

In July, the Legislature agreed to increase the public defender pay rate by $20 an hour over the next two years and pay for the Committee for Public Counsel Services to hire more attorneys.

The committee said while the crisis has improved slightly since then, there still aren't enough bar advocates to meet demand. The group's lawyers told the court Wednesday that they've asked private law firms for help and are hiring more lawyers, but the delays are violating defendants' constitutional rights. They asked the high court to rule that the Lavallee protocol should be revised and steps be taken to further raise salary rates for bar advocates.

"We want people to have lawyers," Jacobstein said. "And we are trying, and we are out of ideas."

State prosecutors acknowledged the court system faces severe problems due to the public defender shortage. One prosecutor told the high court "it's a mess," but said it is functioning.

But the prosecutors argued the state's highest court does not have the authority to determine how much public defenders are paid and doing so would violate the separation of powers among branches of government.

Massachusetts Assistant Attorney General Marina Pullerits told the justices it's up to the state Legislature to determine bar advocates' pay rates.

"We are in agreement that the courts can indeed consider the constitutionality of a rate paid for bar advocates," Pullerits said. "What they cannot do is go the next step and set that rate."

The justices appeared wary of weighing in on funding issues.

"This is ordering the Legislature to go find some money," said Justice Dalila Argaez Wendlandt . But she said the court may need to take action, because "if we don't, we allow defendants to continue to have their constitutional right to counsel to be violated."

The Committee for Public Counsel Services said in early October more than 2,600 low-income defendants in Suffolk and Middlesex counties had no legal representation; 75 of them were incarcerated. That month, the public defenders committee introduced a pay incentive program for attorneys, offering different sums depending on the case. While it says that has reduced the number of unrepresented defendants, that incentive program expires this month.

The high court took the case under advisement.

A hearing is scheduled next week before a single state Supreme Judicial Court justice to review the protocol established to deal with the dispute.