The Supreme Judicial Court determined Thursday that a continuing work stoppage by public defenders may result in the dismissal of hundreds of cases against unrepresented individuals facing criminal charges in Suffolk and Middlesex counties by the end of the month.
Bar advocates, who are private attorneys rather than state workers, provide the majority of the constitutionally mandated representation for defendants in Massachusetts who are unable to pay for their own. In order to push for greater hourly wages—which are determined by the legislature—bar advocates ceased taking on cases involving the poor in May.
Associate Justice Dalila Argaez Wendlandt ordered judges to release unrepresented suspects who had been detained for more than seven days in a 25-page ruling released Thursday, citing an emergency protocol. A defendant who has been charged with a felony, misdemeanor, or municipal ordinance infraction without legal representation for more than 45 days may also have their case dismissed by the judge.
Wendlandt’s injunction states that by July 25, the cases of about 271 unrepresented defendants in Middlesex County, Chelsea District Court, and the Boston Municipal Court will have been pending for at least 45 days. The ruling states that at least 30 individuals in those courts had been detained for more than a week without legal representation.
On behalf of the unrepresented, impoverished criminal defendants, the Committee for Public Counsel Services, or CPCS, brought the action against the prosecutors in June. It requested that the Lavallee protocol, a 2004 precedent that establishes the seven- and 45-day timeframes, be enforced by the courts. The group that organizes bar advocates, CPCS, also requested higher lawyer pay.
The most recent rise for bar advocates in Massachusetts was $65 per hour in 2022. Among nearby states, some of which offer rates more than twice as high as Massachusetts’, this is the lowest rate. Wendlandt declined to use her authority in her order to alter the compensation rates without causing any harm, thus CPCS may reapply later.
Wendlandt discovered that there are considerably more defendants in the counties now than are required to implement the Lavallee procedure.
According to a statement from CPCS Chief representation Anthony Benedetti, this judicial intervention is an essential protection for the rights of those who are being prosecuted without the assistance of legal representation. However, the Lavallee protocol is only a short-term solution. It ignores the crisis’s primary source, which is the lack of private attorneys ready to take on cases at the going hourly rates. Clients will continue to be unrepresented until this problem is fixed.
Lawyers, advocates want swift resolution, but court sees none
Kevin Hayden, the district attorney for Suffolk County, who oversees Chelsea District Court and BMC, responded to the ruling.
According to his statement, victim rights, public safety, and the constitutional right of destitute defendants to legal representation are our top priorities. We expect that this issue may be resolved with structural adjustments that guarantee it won’t happen again.
In a statement, leaders of the Massachusetts Prisoners Legal Services stressed that everyone has the constitutional right to legal representation in criminal cases and that no one should be imprisoned without the effective support of legal counsel.
The deprivation of liberty that certain defendants are experiencing, notwithstanding the emergency procedures in place, is serious. According to Executive Director Dave Rini, 45 days without an attorney jeopardizes spots in housing programs and other comparable crucial benefits, and seven days in jail without an attorney is enough to risk many people’s jobs, particularly for those who cannot afford their own legal representation. Here, we’re hoping for a prompt, fair settlement.
Wendlandt stated in her ruling that the lack of bar advocates will probably persist for some time to come because of the growing number of unrepresented, impoverished defendants and the indefinite nature of the labor stoppage.
Wendlandt pointed out that there don’t seem to be any tangible current opportunities to address the issue, which is ultimately brought on by the compensation rates established for bar advocates.
In reference to lawyers who are unwilling to take cases at the present hourly rate of $65 per hour, Benedetti of CPCS stated, “We believe the Legislature recognizes that this is not sustainable.”
According to Benedetti, CPCS will keep doing all within our power to fulfill our mission: To guarantee that everyone who is charged with a crime but cannot afford legal representation gets the passionate and successful legal defense that the law requires.
Molly Farrar works for Boston.com as a general assignment reporter, covering topics such as politics, crime, and education.
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