Massachusetts Adopts Significant Reform



September 16, 2005
Malia Brink
NACDL Indigent Defense Counsel


In late July, Massachusetts enacted significant indigent defense reform – doubling the number of public defenders in the state and substantially increasing the appropriation for appointed counsel services. The Massachusetts reform was years in the making, and the overall result is an increase of more than 50% in spending on indigent defense during the past two years.

Prior to this reform, the rate paid to court appointed counsel in Massachusetts was among the lowest in the country, with most lawyers receiving between $30-$40/hour. In 2002, the commission that governs indigent defense in Massachusetts, the Committee for Public Counsel Services, recommended raising the rates to between $60-$120/hour, depending upon the type of case, but the legislature did not fund the increases.

In the wake of this impasse, some court appointed attorneys received notices that they would not be paid for past work because of budget problems. A number of these attorneys began refusing to accept new cases. The problem was temporarily alleviated when the governor agreed to a sign an appropriation to cover the back pay, but soon thereafter, shortages began to appear again as more and more attorneys decided that taking court appointed work was not worth their time. As a result of these shortages, defendants in some counties were detained in jail pretrial without the assistance of counsel.

The ACLU in Massachusetts filed suit on behalf of defendants in one county who had not been appointed counsel. The Supreme Judicial court ordered that any defendant detained pretrial for more than seven days who had not been appointed counsel must be release. Further the Court ordered that the charges against any defendant pending more than forty-five days must be dismissed without prejudice if the defendant had not received counsel.

Around the same time, Holland & Knight, acting as pro bono counsel, filed a lawsuit on behalf of current and future indigent defendants in the state alleging that the appointed counsel rates led to systemic denials of the right to counsel. The lawsuit, Arianna S. v. Commonwealth of Massachusetts, asked the Court to utilize its superintending power of the court system to, among other things, appoint a special master to determine appropriate rates and direct the Commonwealth to increase compensation accordingly. In support of their position, the plaintiffs proffered a study from The Spangenberg Group, which had undertaken a comprehensive review of the Massachusetts system and concluded that the low fees significant contributed to system-wide deficiencies. The suit was supported by local and statewide bar associations, as well as a number of legal organizations, which wrote amicus curiae briefs.

The legislature responded to the increasing pressure by passing an immediate increase of $7.50 in counsel fees and creating a commission to study the issue further. The Supreme Judicial Court then stayed the Holland & Knight lawsuit pending the outcome of commission’s report. The commission began meeting in the fall of 2004, and release a report the following spring. The report recommended further increases in the hourly rates for court appointed counsel, as well as increases in the number of public defenders in the state. But the legislature did not act on the report.

In July of this year, a number of court appointed counsel chose not to renew their contracts. In Suffolk County, which includes Boston, only 140 of the 320 bar advocates renewed, and in Middlesex County, only 90 of the 325 lawyers renewed. The result was yet another indigent defense crisis. On the first day of the new fiscal year, courts statewide were without defenders. At least one judge threatened to hold a lawyer in contempt for refusing to accept a case, even though the lawyer did not have a contract. It is noteworthy that the Massachusetts Association of Criminal Defense Lawyers immediately offered to represent any attorney charged with contempt, and no attorneys were jailed for their refusal to take new cases.

At the same time, the Supreme Judicial Court agreed to revive the Arianna S. lawsuit. The Court agreed to hear oral argument from Holland & Knight on why the stay in the case should be lifted.

The legislature was spurred to action and, this July, a reform bill was adopted that raised the compensation rates for court appointed counsel to between $50-$100/hour. It also established approximately 130 new public defender positions across the state. The lieutenant governor signed the bill into law on July 29, 2005.


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