Call for public defender overhaul

Patrick seeks to end costly use of private lawyers for the indigent

By Andrea Estes
Globe Staff / January 24, 2011

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Governor Deval Patrick wants to eliminate the use of private attorneys to represent indigent defendants, an entrenched $200 million system that has been attacked as unfair by prosecutors across the state.

The sweeping measure, which will be contained in the governor’s fiscal year 2012 budget, would end the state’s practice of farming out roughly 90 percent of the work defending poor clients in criminal cases. The state instead would hire about 1,000 full-time staff attorneys to replace the 3,000 private lawyers the state draws on to represent poor people.

Administration officials say the change could slash at least $45 million from the $207 million budget for the Committee for Public Counsel Services, the state’s public defender agency.

“We have to change the way government does business; we have no option,’’ said an administration official who was not authorized to speak on the record. “Here, where we can deliver the same services or better and do it at a substantial annualized savings for the taxpayer, there’s no excuse for not doing it.’’

Staff lawyers will cost less, officials argue, because they have no incentive to run up huge bills like private lawyers, who are paid $50 to $100 an hour, depending on the type of case. The Public Counsel Services budget, the administration official said, has soared by $100 million since 2003.

But the head of the Committee for Public Counsel Services said the plan is misguided.

“What the governor is proposing is taking a model system by all accounts and an agency that is extremely well run and turning it into a system similar to others in the country,’’ that have been beset by problems, said Anthony Benedetti, the agency’s chief counsel. “In states where the public defenders are all public, public defenders are overworked, underfunded, and provide ineffective representation.’’

Benedetti said he believes officials have overestimated the potential cost savings by misapplying national caseload standards.

“The plan will not save as much money as what they are predicting,’’ he said.

The 1,000 new lawyers would supplement the 200 staff lawyers currently working for the agency, who represent 10 percent of the poor needing legal defense.

The governor’s proposal will also tighten eligibility rules so that defendants must prove that they are needy before they are given a taxpayer-funded lawyer. Currently, officials said, virtually no one is turned away.

Finally, the governor wants to create a new executive branch agency, The Department of Public Counsel Services, which would replace the Committee for Public Counsel Services, a branch of the judiciary.

Prosecutors have long complained that their budgets are much smaller than the private lawyers’, even though their caseloads are much larger.

District attorneys receive $92 million a year and handle 300,000 cases. Public Counsel Services’ criminal defense budget is $168 million, with the other $39 million going for civil cases, and its lawyers handle 200,000 cases annually.

“I applaud the governor for his vision,’’ said Bristol County District Attorney Samuel Sutter, president of the Massachusetts District Attorneys Association. “The district attorneys have been saying publicly for months that sweeping reform is needed. We simply cannot afford the system that is currently in place for indigent defense.

“We’ve been told there are only so many dollars in the criminal justice pie and while we’re watching our budgets being cut, the public counsel budgets are increasing,’’ he said. “There are certain consequences that are antithetical to public safety.’’

But private lawyers, known as bar advocates, say they perform a valuable service at a low cost.

“I’m surprised the governor would want to eliminate a successful, privatized group of very economically independent contractors,’’ said Deborah Sirotkin Butler, a family law attorney who takes some court appointments on child welfare cases.

She said she doesn’t bill the state for much of the time she spends on court-appointed cases

“When I represent a sexually abused 12-year-old, I get $50 an hour,’’ she said. “If I have to wait six hours for a status hearing, I can only bill for one. So I’m actually earning $12 an hour. But I do it because I care about kids.’’

Hiring 1,000 lawyers, she said, would mean the state will have to pay salaries, vacations, insurance, and pensions.

“I pay for my own office,’’ Sirotkin Butler said. “I pay for every sheet of paper. No one reimburses us. We pay our own malpractice insurance and health insurance. Unless they’re intending to go the route of meet-and-greet, sham representation, how can it be cheaper?’’

The governor’s proposal is likely to face roadblocks in the Legislature, which has long resisted efforts to change the public counsel system.

Many defense lawyers have served in the Legislature and the current 3,000 bar advocates represent a powerful lobby that is likely to oppose the measure.