Patrick’s idea to make public defenders state workers draws fire

Critics cite cost of pension, benefits for 1,000 lawyers

By Colleen Quinn
State House News Service / January 25, 2011

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Prosecutors and lawyers who handle public defense cases said yesterday they were surprised by Governor Deval Patrick’s plan to phase out the use of private attorneys and create a new state department with as many as 1,500 employees, with both sides saying there could be better ways to save the state money.

The governor’s plan calls for the hiring of 1,000 lawyers under a new Department of Public Counsel Services within the executive branch, with up to 500 more support staff. The administration estimates its plan will save $45 million by eliminating the Committee for Public Counsel Services in the judicial branch and wiping out hourly legal wages paid out to roughly 3,000 lawyers who work on contracts.

“In the face of the state’s new fiscal reality, we must change the way government does business to ensure we are stretching every taxpayer dollar as far as possible,’’ said Jay Gonzalez, secretary of administration and finance. “The governor’s proposal for reforming our system for providing legal counsel to indigent defendants is an example of exactly the type of change we need to be making. This reform will result in greater accountability, program integrity, and tens of millions in cost savings that will allow us to preserve indigent defense services and other critical programs and services throughout state government.’’

According to lawyers whose contracts are threatened by Patrick’s proposal, the plan will cost the state more than the current system, since salaried state workers will receive pensions and benefits.

“It is inconceivable that in this budget environment the administration would propose hiring 1,000 state employees with pensions, health insurance, benefits, overhead, and administrative costs,’’ said Benjamin Fierro, who represents the Association of Court Appointed Attorneys.

According to the administration, 28 states have public counsel systems similar to the one Patrick outlined yesterday, and Massachusetts is one of six states whose public defenders fall within the judiciary.

State Senator Cynthia Creem, Democrat of Newton, was noncommittal on whether it was a good idea to eliminate private attorneys from public counsel. As chairwoman of the Judiciary Committee, Creem is likely to play a role in the fate of Patrick’s plan. “I don’t think it should be a fait accompli,’’ she said, referring to the governor’s plan.

Creem said she wants more information on how much it will cost to set up the new department and how much might be saved. Creem said it was a good time for the state to look at the issue while reviewing both probation and parole departments.

“I am not convinced this is what we ought to do or not to do,’’ she said. “We need a lot more information.’’

The Committee for Public Counsel Services is an independent agency appointed by the Supreme Judicial Court. Last fall, district attorneys highlighted the disparity between the budgets for prosecutors and public defenders, sparking a contentious debate.

The budget for Public Counsel Services has risen dramatically in the last decade, prosecutors argued, gearing up for this budget season and presssing for more funding.

“We do not see how the governor’s proposal would save the money they are suggesting it would, unless you completely throw quality by the wayside,’’ said Anthony Benedetti, chief counsel for the committee.

Benedetti said it would create a system similar to other states where public defenders are overworked and bogged down with too many cases to effectively represent their clients. That would cost the state more money if more cases are sent to appellate court, he said.

The governor’s plan to fold the Committee for Public Counsel Services into the executive branch also could create legal conflicts of interest and complexities in criminal cases involving multiple defendants, he said.

Plus, the governor’s plan neglects to address what to do with noncriminal cases that private attorneys handle, such as mental health cases, hospital committal cases, or children in need of protective custody. The state could not act as both prosecutor and defense in such cases, Benedetti said.

Benedetti said CPCS lawyers have argued for years that the state could save money if it looked more closely at the number of cases coming into the system. Eligibility for free legal services, which is addressed in Patrick’s plan, needs to be looked at more closely, Public Counsel Services lawyers and prosecutors said.

District attorneys prosecute about 300,000 criminal cases annually with a collective budget of about $92 million, while the Committee for Public Counsel Services defends only about two-thirds of those cases but receives nearly twice as much, prosecutors said. The total budget for the committee is $201.7 million. It spends $130 million to represent criminal defendants and $62 million for noncriminal, family court, and mental health cases, according to the committee.