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Building a more effective public defender system

FOR THE past few months, the attorney general's office has been defending the Commonwealth in litigation challenging the pay rates for assigned counsel. As we move forward to sort out the issues raised in the suit and its consequences, our highest priority must be the public's safety.

For now, the courts have taken control of the serious problem in our state's public defender system. Since Aug. 9, when three alleged drug dealers were released by the Hampden County court because no lawyer was available to represent them, no criminal defendant has been released from custody for lack of a lawyer. But this is a short-term solution at best.

Under our Constitution we have a responsibility to provide counsel to indigent criminal defendants at the state's expense. That right is not in dispute. But the best way for the Commonwealth to fulfill this obligation is very much in question. It is always hard to fashion a long-term solution when faced with a short-term crisis. But that is what we must do. Before concluding that more resources should be devoted to this obligation, a few things must happen.

First, we need to get the facts.

Currently statewide, about 20 percent of indigent defendants are represented by public defenders from the Committee for Public Counsel Services, and about 80 percent are assigned from among over 2,000 private bar advocates. Many bar advocates say that the crisis was brought on by the low pay scale. In response, the Legislature authorized an additional $17 million for bar advocate compensation, bringing the total spent on counsel for indigents to more than $100 million a year. Even after this emergency rate increase, some bar advocates continued to refuse case assignments, again citing low pay as the reason.

I've done the work bar advocates do. I know it is difficult, often thankless work. I also know that our criminal justice system depends on both strong prosecution of crimes and a vigorous and competent defense. Bar advocates deserve to be paid fairly. Higher pay for bar advocates cannot be the only answer, however.

Next, we need to create the proper climate to achieve a long-term solution. The Legislature has taken important steps in that direction. First, it raised bar advocates' pay by 19 to 25 percent. Second, it has created a commission to look at the entire system for providing counsel to indigent people.

The commission is being asked to address questions that go beyond money. How is indigency to be determined and verified? How many salaried public defenders should there be? How many private bar advocates? What is the cost of providing counsel to the indigent? How should those costs be allocated between salaried defenders and bar advocates?

These are the right questions. Before considering an additional appropriation, the Legislature, rightfully, must see the entire picture. And the public must have confidence that the money appropriated for counsel services is well spent.

Most important, commission members should be provided the data they need to do their jobs. There are plenty of anecdotes about people who, though not indigent, still receive counsel paid for by the public. The commission should determine whether this is happening and gather ideas about ways to avoid such improper assignments. Any calls for additional funding should be justified by reliable evidence.

The bar and other interested players should now match the Legislature's first steps with action of their own. First and foremost, bar advocates should accept cases at the new, higher rates while the commission does its work. I applaud those who have already done so. This helps ensure that potentially dangerous defendants are not released to the streets and that a public safety crisis is averted.

Additionally, recent legislation directs the Public Counsel Services committee to appoint its own lawyers in western Massachusetts, where there is a shortage of private bar advocates. The committee should examine its caseloads to ensure that the public defender agency is doing all that it can do. It should fill in where needed until a more permanent solution emerges.

Finally, all parties should come to the discussion with an open mind. Deciding how to provide counsel services most efficiently to indigents in over 200,000 cases annually across the Commonwealth is no easy task.

Thus far, more money for bar advocates has been the only topic of discussion. But, providing additional money without a real examination of how it should be spent is neither responsible nor prudent. Our common goal should be a cost effective system that works. By working together in a less charged environment, I believe we can get there.

Thomas F. Reilly is attorney general of Massachusetts  

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