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Indigent Defense Reforms
[ index ]
FY2012 House 1 Budget Recommendation:
Issues in Brief
Deval L. Patrick, Governor
Timothy P. Murray, Lt. Governor
The Committee for Public Counsel Services (CPCS) is a judicial branch agency in the Commonwealth that is responsible for providing criminal defense, as well as certain civil defense matters pertaining to Children and Family Law, for indigent persons. Individuals who are charged with committing a crime and who are determined to not have resources available to obtain legal representation may be deemed indigent and appointed an attorney by a judge. These cases are assigned to CPCS and most cases are handled and represented by contracted attorneys called Private Bar Advocates (PBA). There are over 3,000 contracted private bar advocates who defend 90% of the Committee's annual case load and bill the Commonwealth at an hourly rate for this service. This heavy reliance on contracted employees to handle the majority of cases assigned to the Committee continues to place significant budgetary pressures on the Commonwealth.
The constitutional right to an attorney was codified into law in 1963 by United States Supreme Court ruling in Gideon V. Wainwright, requiring state courts, under the Sixth Amendment of the Constitution, to provide counsel in criminal cases for defendants who are unable to afford their own attorneys. States provide this service in a variety of ways, and while Massachusetts provides quality service to indigent persons, the system is very costly. Only 6 other states in the nation have a similar government structure, by providing this service within the judicial branch. 28 other states have executive agencies that manage the delivery of public defense services; allowing transparency and accountability to the officials who manage the indigent defense services.
Legal defense expenses for criminal and certain civil cases for indigent persons have been increasing in recent years. The fiscal year 2011 total cost is projected to be over $207 million which is a $21 million increase since fiscal year 2007 and over $100 million increase since 2003. This increase over 2007 is mainly due to the increases in the hourly billing that is done by the private bar advocates who represent 90% of the annual indigent case load. This significant increase since 2003 is also in part a result of the Lavallee ruling that determined the compensation to private advocates and public defenders was inadequate, resulting in hourly billing rate increases across the system. The cost of the current CPCS system continues to rise even while the private bar advocate's cases load declined 6.5% from fiscal year 2008 to fiscal year 2010 and the public division caseload declined slightly from fiscal year 2009-2010 by 1.7%. In addition, the disparity between the amounts of funds spent on the actual state agency versus the private bar advocates is expanding. In fiscal year 2011 the agency will spend $32 million and there is a need of over $162 million for the private bar advocates’ cost. The chart below displays the total expenditures by the Committee from fiscal year 2005 to projected fiscal year 2011:
The Governor’s H.1 budget recommendation includes a reform proposal that will change the current CPCS system. This proposal reflects the legal defense structure comparable to that of the majority of states in the nation.
CPCS is currently governed by a 15 member board, who are all appointed by the Supreme Judicial Court. All Committee board members are lawyers and are exempted from restrictions that prevent them from billing their own agency as private bar advocates; in fact four sitting board members billed nearly $250,000 in aggregate in fiscal year 2011. Also, in fiscal year 2010 more than half of the private bar advocates billed the Committee more than the average salary of a CPCS staff attorney. This current CPCS governance structure lacks incentives to reform the system, and has not moved aggressively to adopt cost-savings reforms that proposed shifting funding from private bar advocates to the public division staff attorneys.
The Governor’s H.1 budget proposal includes language that would abolish this board, and create a new independent executive branch agency called the Department of Public Counsel Services. In addition, the director of this new agency will be appointed by the Governor.
Other states have more accountability for their public defender departments by either publicly electing their Chief Public Defender (similarly to District Attorneys) or having this position appointed by the Governor. This reform increases transparency and accountability within the department by having the manager of this department who, through an appointment, must respond to the Governor. It reflects a structure that is comparable to the majority of states that deliver indigent legal defense, either as an executive agency or by having executive influence in the appointment of the Chief Counsels or Executive Directors.
|States with Judicial Branch Agencies||6||CO; CT; ID; MA; NC; OR|
|States with Executive Branch Agencies||17||AK; DE; HI; IW; KS; KY; MO; MT; NJ; NM; NV; NH; OK; RI; VT; WV; WI; WY|
|States with Executive Oversight||11||AR; CA; GA; IN; MD; ME; MN; ND; OH; SC; TX; VA; WA|
|States with Local/County Control||13||AL; AZ ; FL; IL; LA; MI; MS; NE; NY; PA; SD; TN; UT|
Due to the large size of the CPCS private division, oversight of billing accuracy and case management becomes increasingly challenging due to available staffing and resources. The Governor’s H.1 proposal recommends that the Commonwealth move away from a system that relies on contract private advocates and the hourly billing model to a system that is served by 100% salaried public defenders. This will require the Commonwealth to hire hundreds of salaried public defenders which will create tens of millions of dollars in savings in the system, by moving away from hourly billing costs, to known and predictable costs. However, the savings are clear and this will allow for stable budgets and eliminate the need for enhanced internal controls over a billing system that currently handles over 3,000 individuals submitting bills for thousands of different legal cases.
By using national case load standards it was determined that current CPCS staff attorneys continue, on average, to have comparatively reduced caseloads. By conservatively applying the National Legal Aid Defender Association's maximum case load standards it was determined that by eliminating all private bar advocates approximately 1,000 additional staff attorneys would be required to handle the current case load. The savings estimate also factors in other costs including state benefits, retirement, over head, such as additional management, support staff, and other costs associated with operating the agency.
The determination of eligibility is currently being performed by the Probation department, which the Governor is proposing to transfer to a new Executive Branch agency. This process will now be managed by the new Department of Public Counsel Services which will enhance and tighten the eligibility determination process. Only those that are eligible should be receiving services from the state, and there are significant concerns about the rigor of the current eligibility determination process. By increasing the controls of the eligibility determination and re-determination process, it is expected that the department’s case load will decrease and the fee collections from people deemed "able to contribute" to the assignment of their counsel will increase.
The H.1 recommendation will generate savings by moving to a CPCS structure that hires state staff public defenders to represent 100% of the indigent caseload and discontinuing, except in conflict cases, the practice of contracting with private bar advocates. In addition, this proposal will also eliminate the CPCS board and make CPCS an independent executive branch agency and will enhance the indigency eligibility determination process that is currently inadequate.
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