BBA Is Part of the Discussion on Indigency Requirements

On August 6, the SJC released an amended version of SJC Rule 3:10 regarding indigency requirements for the assignment of counsel in criminal cases.  The Civil Rights and Civil Liberties Section Steering Committee, chaired by Philip Catanzano and Rahsaan Hall,  reviewed and submitted comments on the proposed amendments to this rule in April of this year.  Their comments focused on the challenges facing indigent individuals requiring counsel and the need for reasonableness and fairness in these rules.  They expressed specific concerns about procedures in the counsel appointment process including placing the burden of proof of indigency on the indigent individual.

The rule approved by the SJC includes a number of major revisions such as redefining indigency to include juveniles in child welfare proceedings or in the custody of the Department of Children and Families and 18-22-year-old young adults who are parties in permanency hearings.  The new definition removes the receipt of Medicaid as an automatic determinant of indigency, but permits a judge to consider it as a factor.  It also prohibits questioning parties about their immigration or citizenship status as part of the income determination process.  In addition, the amendments clarify the procedural process to be used in determining indigency and the imposition and collection of various indigency fees.  This page has a more detailed breakdown of the major changes.

According to a statement from the Justice of the SJC, the amendments are intended to update and clarify the rule.  They were proposed by the SJC Committee on Indigency, which was convened in January 2015.  The Committee reviewed recommendations from the Committee for Public Counsel Services (CPCS), which had convened a task force, including representatives from CPCS, the Office of the Commissioner of Probation, the Probate and Family Court and the Department of Revenue, to propose revisions to Rule 3:10.  Prior to this revision, the Rule had last been amended in 1993.

We are pleased to be part of this discussion and will keep you updated on the

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association