Here is why the Governor’s proposal regarding indigent defense should be overturned in the legislature in favor of current practices and constitutional requirements.
If indigent people are arrested, pursuant to the United States Constitution Bill of Rights, the Sixth Amendment mandates that counsel be appointed. This is hard wired, and a constitutional mandate.
The Sixth Amendment was passed to avoid the situation in Old England where the rich had rights, but despite laws, the poor did not as they had no legal representation; today England goes far further in providing counsel to indigent people in both criminal and civil matters, by the way, see Civil Gideon, a scholarly discussion In fact, the best laws and programs “on the books” will not benefit the poor if they cannot enforce the laws or access the programs. Selective enforcement has always been a symptom of both corruption, and lack of access to legal representation.
As discussed above, judges have no choice; if an arrested person is arraigned, pursuant to The Lavallee decision judges must either appoint counsel or release the defendant.
Rather than release the defendant, judges have created a right to draft attorneys without the agreement of the attorney to accept the appointment, on threat of disbarment, see Cooper decision
This stark reality does not face any other profession or branch of government. There is no constitutionally mandated minimum level of dental care – even if there should be! Just imagine, too, if doctors and dentists could be drafted to provide care without THEIR consent, with no control over when, if, or what they were paid, what kind of outcry there would be!
Perhaps this is because an early rallying cry of our democracy was “Give me liberty or give me death.” The right to counsel was seen to be absolutely essential to liberty, and to protect citizens from the potentially crushing power of the State.
Therefore, an honest discussion of the costs of representation for indigent accused,and the programs for providing that representation is essential, and did not occur in a public way.
For an change in modality to be put forward on an inaccurate and misleading basis is unfair to the poor who risk loss of liberty and children, the attorneys who provide representation, the judicial branch AND all other funded programs.
This is especially true when every suggestion for reducing costs of representation, number of cases and augmented funding for indigent defense was apparently ignored. Several organizations, including the Committee for Public Counsel Services, also known as CPCS, and the Massachusetts Association of Court Appointed Attorneys, also known as MACAA, met with Administration and Finance and proposed methods to contain or reduce the costs of indigent representation while maintaining or improving quality, as well as funding sources. NONE of these suggested cost reductions or revenue sources were adopted in the Governor’s proposed budget. I have reviewed both the CPCS Proposal and the MACAA proposal personally, and both organizations made solid, responsible suggestions. Disclosure – I am a member and officer of MACAA.
Indigent defense is not a service in competition with other equally worthy services, but a core, constitutionally mandated and required part of the requirements of the judicial branch. Unlike many other functions, indigent defense is mandatory, not optional at all.
For many years the Commonwealth has balanced its budget by squeezing the poor and underpaying or slow paying dedicated attorneys who are at risk of being drafted. Some years, for example in 2003 and 2007. attorneys wait five or more months to be paid for work they have already done and submitted proper invoices to the state for. Attorneys do not receive any interest for late payments by the Commonwealth, unlike other vendors.
And, for the record, the Rosemary Cooper who brought the Cooper case was a grandmother, on social security, dying of cancer when she fought her way to the SJC alone because she was so offended at being drafted and losing her free will ability to take or decline clients. She was also my friend and the bravest human being I have ever known.