SJC urged to raise rates to address indigent defense crisis

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Given the ongoing violation of constitutional rights involved, the time has come for the Supreme Judicial Court to cross a Rubicon to resolve an unprecedented shortage of attorneys to represent indigent criminal defendants, attorneys for the Committee for Public Counsel Services are expected to tell the SJC at oral argument on Nov. 5.

The position that the SJC should raise pay rates for bar advocates itself rather than continue to defer to the Legislature has the support of 328 bar advocates who submitted an amicus brief in Committee for Public Counsel Services v. Middlesex and Suffolk County District Courts, et al., along with the Massachusetts Association of Criminal Defense Lawyers and the ACLU of Massachusetts, which also submitted briefs in support of petitioner CPCS.

The respondents, the Middlesex and Suffolk County District Courts, and the District Attorney’s Office in those two counties, which intervened in the case, counter that the separation of powers must still be respected, especially given the Legislature’s recent effort to address the crisis.

However, not only has that legislative response failed to resolve the crisis, it has in some ways made it worse, the petitioners and amici say.

“What’s different here [is] you have a situation where the SJC has put the Legislature on notice — for over 20 years now — that there is a problem of chronic underfunding of the indigent defense system, has repeatedly warned about what was happening, and you have a situation where the single justice [Dalila Wendlandt] has delayed reporting this question for almost five months in hopes that the Legislature was going to do something, and that what they would do would help,” said Waltham attorney Nicholas J. Louisa, co-author of the bar advocates’ brief. “And she’s seen the numbers, and despite the [pay raise included in the supplemental budget], nothing has changed.”

The ACLU’s brief includes a chart that shows even when bar advocates’ compensation has been raised, it has not kept pace with inflation.

“The purchasing power of the newly-instituted $75 hourly rate would have been approximately $45 in 2005, which is less than the rate implemented in response to Lavallee [v. Justices in the Hampden Superior Court, in 2004],” the brief notes.

“We have just seen that there have been repeated examples where the Legislature has not matched the constitutional needs of indigent defendants in the commonwealth,” said Jessie J. Rossman, co-author of the ACLU’s brief.

That stagnation is why the SJC needs to act, the petitioners and amici say. The question is whether the court agrees it has the power to do so.

The history

On May 27, many bar advocates — private attorneys who contract with CPCS to represent indigent defendants — ceased taking new cases to protest pay rates that had fallen severely out of step with those of their peers in neighboring states and left them unable to make a living doing work the state has been depending on to meet defendants’ constitutionally guaranteed right to counsel.

As slots on “duty day” calendars remained empty, the number of defendants for whom an attorney could not be found grew, leading Wendlandt on July 3 to implement a procedure developed by the SJC in the face of a previous shortage and announced in its 2004 decision in Lavallee.

Under the “Lavallee protocol,” defendants who have been incarcerated for seven days without an attorney become eligible for release, while defendants who go 45 days without counsel can have the charges against them dismissed without prejudice, meaning they can be refiled.

In terms of the number of defendants affected, the scope of the current crisis dwarfs the situation in Lavallee, which involved 58 defendants without counsel, and the circumstances that led to the second invocation of the Lavallee protocol in 2020 in the case Carrasquillo v. Hampden County Dist. Courts, which involved 155 unrepresented defendants, CPCS notes in its brief.

“Lavallee was never meant to be a permanent solution,” said Jessie J. Rossman, who co-authored the ACLU’s brief.

On June 29, before Wendlandt’s ruling, there were 1,392 indigent defendants without counsel statewide (604 in Middlesex; 646 in Suffolk), 87 of whom were in custody (25 in Middlesex; 46 in Suffolk).

Gov. Maura T. Healey signed a supplemental budget package on Aug. 5 that included a provision raising the pay of bar advocates working in District Court from $65 to $75 an hour as of Aug. 1, and to $85 an hour on Aug. 1, 2026.

Funding was also provided for CPCS to hire approximately 160 new attorneys by the end of fiscal year 2026 and another 160 new attorneys by the end of fiscal year 2027, which it has begun to do. It added 22 new staff public defenders to what had been a 16-attorney “fall class,” with 80 percent of those new hires set to be dispatched to Suffolk and Middlesex counties.

However, bar advocates have been slow to return to work. Not only do they believe that the raise they have been granted is inadequate, but they have been put off by lawmakers inserting what many view as a “poison pill” — an antitrust provision that they say sets them up for civil and criminal prosecution.

Since the Legislature acted, Suffolk has fared better than Middlesex as far as having bar advocates fill duty day calendars, CPCS reports in its brief. Still, there is no end in sight to the crisis, CPCS reports.

As of Oct. 2, there were 2,653 unrepresented indigent defendants across the state — 1,133 in Middlesex County; 1,329 in Suffolk — 75 of whom (seven in Middlesex; 58 in Suffolk) are in custody. Those numbers do not include over 800 individuals whose cases were dismissed without prejudice after a 45-day Lavallee hearing, according to CPCS.

The pay’s the thing, mostly

As Lavallee and Carrasquillo illustrate, the SJC-favored approach in response to previous attorney shortages has been to defer to the Legislature to craft a permanent solution. The Lavallee protocol was just meant to serve as a constitutional Band-Aid until the Legislature had a chance to act, according to Rossman.

“Lavallee was never meant to be a permanent solution,” she said.

But just because the SJC has not previously adjusted pay rates does not mean that it must yield to the Legislature now, the petitioners and amici urge. Indeed, the court used words like “defer” in Lavallee and Carrasquillo to acknowledge its power to increase bar advocates’ pay rates, even as it was choosing not to exercise it, they say.

“To the contrary, courts do not stand by and allow the government to trample on constitutional rights merely ‘because funds have not been appropriated to remedy the wrong,’” CPCS writes in its brief, citing the 1983 case Michaud v. Sheriff of Essex County.

To be able to amend the rates set by the Legislature, CPCS acknowledges that the SJC will first have to find that the Legislature’s response has “proven to be constitutionally inadequate.”

“If this Court holds that it has the authority to override the Legislature’s compensation scheme in these circumstances, it would not be alone,” CPCS adds, pointing to other states’ highest courts that have held statutory limitations on compensation to court-appointed attorneys to be unconstitutional.

But the respondents argue that the Legislature’s response does not qualify as being unconstitutional. For example, they point to the fact that the pay raises exceed the figures CPCS itself lobbied for on March 28 — $68 an hour in District Court for FY26, $73 an hour in FY27 — as lawmakers hammered out the FY26 budget.

CPCS’s argument that courts are authorized to raise bar advocates’ compensation rates “depends largely on out-of-context citations to six cases,” the courts argue.

While CPCS does not suggest a specific number to which the SJC should raise the bar advocates’ pay — the single justice should be given the authority to temporarily raise rates, it argues — the bar advocates suggest $125 an hour for District Court assignments in their brief, which MACDL endorsed.

The ACLU, meanwhile, took the approach of laying out “a common set of factors that are routinely used by courts” to guide its consideration of an appropriate interim compensation package for bar advocates. In setting a rate, the SJC should account for whether the Legislature’s provision that seeks to discourage bar advocates from engaging in collective action in the future remains in place or is struck.

“To the extent the antitrust provision remains a part of the compensation scheme — and there are good reasons it should not — the rate will have to reflect the sizeable risk of enhanced liability for attorneys considering taking appointed cases in Massachusetts in addition to all of the other considerations,” its brief reads.

The antitrust provision is no small matter, Louisa agreed, noting that his brief includes affidavits from bar advocates who say they will not go back to accepting court appointments if the antitrust provision remains, even if the pay rate increases.

“Some bar advocates feel that they need to actually not just accept appointments but resign from CPCS panels in order to insulate themselves from any liability,” he said.

In addition to considering whether it has the authority to raise pay rates for bar advocates, CPCS is asking the court to consider strengthening the Lavallee protocol by making defendants eligible for release after three days of being held under an order of preventive detention, instead of seven, and to lower to 30 from 45 the number of days a case must be pending before charges are dismissed without prejudice. They then want trial courts to be required to dismiss cases with prejudice after a defendant has gone 45 days without an attorney.

The reason, they explain, is that “some unrepresented defendants now find themselves in an interminable merry-go-round where charges come and go yet they have to keep coming back to court and remain subject to harsh pretrial conditions as their cases continue to go uninvestigated, witnesses’ memories continue to fade, and physical evidence continues to disappear because there are still not enough attorneys willing to work at the current rates.”

The respondents argue that this request goes beyond the question that Wendlandt reported to the court.

Incentive program

On Oct. 20, CPCS rolled out what it called “a one-time short-term incentive program” to encourage bar advocates to pick up cases to ameliorate the shortage in the Suffolk and Middlesex District Courts and Boston Municipal Courts.

Bar advocates who respond by 5 p.m. on Nov. 17 will be assigned five cases from CPCS’s list of unrepresented defendants and become eligible for a payment of $2,500 once CPCS issues its fifth notice of assignment.

Attorneys can receive up to three such incentive payments — a total of $7,500 — by agreeing to pick up 15 cases.

A spokesperson for CPCS declined to comment on the rationale behind the incentive program, citing the ongoing litigation.

Louisa said the bar advocates are not sure what to make of the incentive program, especially given its timing so close to the oral argument before the SJC, along with a related hearing before Wendlandt on Nov. 13 (see sidebar).

A footnote in the bar advocates’ brief reads: “Amici strongly believe that this out-of-the-blue incentive is short-sighted and misguided, if it is proposed as a substitute for the relief sought here.”

If it has any effect, the incentive program will serve only to exacerbate the current crises elsewhere by pulling resources away from other counties, the bar advocates argue.

“Hampden County is the perfect example,” Louisa said. “They did incentive pay for a number of years, on and off, and to this day, Hampden County is still in crisis.”

The footnote concludes that the incentive “is performative — not substantive, and it will not change the calculus as to whether this Court needs to act now.”

Louisa added that even if there is a slight decrease in the number of unrepresented defendants due to the incentive, “what does that prove? It proves that the issue is compensation. It proves that compensation fixes the problem.”