Yesterday the Office of the Inspector General (OIG) released a report on the state’s public defense system.
The report concludes that “the Commonwealth’s public defense system is broken, expensive, and is resistant to oversight.”
In the 174-page report, the OIG highlights three major problems with our state’s system.
CPCS Has Failed to Meet Its 20% Caseload Mandate
First, the Committee for Public Counsel Services (CPCS) does not meet its statutory mandate which requires the agency to represent 20% of the state’s indigent defendants.
CPCS employs “staff attorneys” who are full-time public defenders paid a fixed salary.
When CPCS is unable to take a criminal case, it goes to a “bar advocate.” This is a private attorney who takes court-appointed criminal cases and bills the state at a set hourly rate (currently $75 per hour in district court and $95 per hour in superior court).
According to the report,
The OIG found that CPCS attorneys work the lowest number of cases of any statewide public defender system for which the OIG could find comparable data, including Connecticut, New Hampshire, and Vermont, and fail to handle twenty percent of the caseload as required by the Legislature. Among the comparable statewide systems, the OIG found that Massachusetts was the most expensive system on a cost-per-new-case basis.
The OIG goes on to say “unless CPCS staff attorneys increase their caseload, it would be more cost effective for the Commonwealth to continue to rely on bar advocates (and even to further increase bar advocate fees) than to hire additional CPCS staff attorneys.”
Bar Advocates Can Annually Bill Up to 2,000 Hours for Legal Services Regardless of Their Caseload
Next, the report found that the pay structure for bar advocates does not incentivize them to take additional cases.
Massachusetts bar advocates can annually bill the state for up to 2,000 hours of legal services–regardless of the number of cases they handle.
No other state pays bar advocates this way.
The OIG report notes,
Massachusetts is an outlier by setting an annual hour limit, but not setting a fee cap for the amount that appointed counsel can bill on individual cases. Most other states set fee caps that range based on the type of case. The OIG found many instances of high bills on even the most straightforward cases, which CPCS pays without any significant oversight.
Nevertheless, the OIG acknowledges that Massachusetts bar advocates are paid less than neighboring states.
State-Paid Defense Attorneys Are Being Appointed to Defendants Who Aren’t Indigent
Finally, the OIG found that courts and probation departments have failed to scrutinize defendants’ financial status.
This has led to many defendants receiving court-appointed counsel when, in fact, they have the means to pay for a private lawyer.
According to the report,
the OIG made deeply troubling findings that the system by which indigency is determined is broken. The methods used to verify indigency are outdated or not consistently used to validate indigency status. The OIG found that the Massachusetts Probation Service (Probation), an independent division within the Administrative Office of the Trial Court charged with reviewing the income and assets of a defendant and recommending whether a defendant qualifies for appointed counsel, often fails to complete the required initial steps and frequently fails to complete required follow-up checks during the course of the representation. In almost all circumstances, Probation makes a recommendation about indigency status without verifying spousal income and, with some frequency, does not verify indigency against a single government source. It would be wrong to believe most individuals who receive appointed counsel in Massachusetts have been properly screened. Additionally, the current indigency verification process should be strengthened and modernized, such as by checking additional government sources of information or by implementing screening processes much like those that would be completed by any merchant seeking to conduct a credit check.
To read the OIG report in its entirety, click the document below.