SJC Considers Shortage of Lawyers to Represent Indigent Criminal Defendants

We’ve written here before about a set of three cases in Hampden and Worcester Counties which highlight the shortage of available attorneys to represent indigent criminal defendants, as the Constitution requires.

The BBA submitted an amicus brief on the issue to the SJC, as we did in 2004— the last time the Court heard a similar case.  We urged them to act decisively to address this constitutional crisis, which was triggered, once again, by underfunding of the Commonwealth’s commitment to the right to counsel enshrined in Gideon v. Wainwright.

On November 7, the SJC held 2+ hours of oral argument on three cases. Although the BBA brief was not cited by name, justices referred to our argument that an increase in the hourly rates offered to private attorneys who handle indigent criminal defense could provide a resolution to the problem. They also brought up our point that public-safety concerns are heightened where, as here, prosecutors seek to hold the defendant on dangerousness grounds.

Much of the discussion centered on the so-called Lavallee protocol, as set forth in that 2004 case. The protocol calls for defendants to be released after 7 days if no attorney can be appointed, and charges to be dismissed, without prejudice, after 45 days. 

Attorneys differed over whether it still provides a workable solution, and over whether the justices should view it as a way to ensure defendants’ rights are honored, or as a way to impose consequences when they are not.

The was no agreement over whether the Lavallee decision applies to the current situation, how such a decision is to be made by the courts, what (if anything) should replace Lavallee, nor whether the SJC can exercise its superintendence authority to increase hourly compensation rates in order to increase the supply of attorneys accepting indigent-defense cases.

Also at issue — though the BBA brief took no position on it — was interpretation of the SJC’s 2017 Brangan ruling, which holds that, in making bail decisions, judges must take into account the defendant’s ability to pay, and, when imposing bail at a level that a defendant likely cannot pay, must explain why there was no other way to guarantee the defendant’s appearance.

You can read our live-tweeting of the oral argument, and you can watch the full video. A decision is expected by March — coincidentally, just as budget discussions at the State House begin to heat up.

-Michael Avitzur
Government Relations Director
Boston Bar Association