Not all the case files of the Office of the Commissioner of Probation (OCP) had required documentation related to the determination of indigency. We reviewed a total of 80 case files in eight district courts, four juvenile courts, and four superior courts and found that 5 case files did not have the required intake forms (called Intake Indigency Reports), 3 case files did not have Consent Forms, and 15 case files did not have Indigency Verification Results Forms. Without the proper supporting documentation, the Commonwealth cannot be certain that those claiming to be indigent are in fact indigent and therefore eligible for appointed counsel.
Our prior audit of CPCS (No. 2011-1104-3C) noted that OCP had not established a statewide standard practice in district courts to determine indigency. OCP also did not have a system in place to monitor each court for compliance with indigency verification requirements. The prior audit reviewed 27 district courts and found that for the period July 1, 2007 through June 30, 2011, 98% of the courts reviewed were not compliant with indigency verification laws, regulations, and rules because they did not have supporting documentation on file. We recommended that OCP develop and implement standard policies and procedures, including verification measures and monitoring activities to be used by the Probation Departments of all courts to determine whether defendants met the established definition of indigency.
During our current audit, we found that OCP has established standard policies and procedures in this area at all courts. In addition, OCP has established a system-wide process to be used by Chief Probation Officers (CPOs) and their staff members to determine effectively whether a person seeking state-sponsored legal counsel meets the definition of indigency. However, as discussed above, problems remain in courts’ maintenance of adequate documentation regarding the indigency determination process.
The CPO assigned to each court is responsible for ensuring that a person claiming to be indigent meets the definition of indigency by complying with Section 2A of Chapter 211D of the General Laws, which states,
(a) A person claiming indigency under section 2 shall execute a waiver [Consent Form] authorizing the court’s chief probation officer, or the officer’s designee, to obtain the person’s wage, tax and asset information from the department of revenue, department of transitional assistance and the registry of motor vehicles that the court may find useful in verifying the person’s claim of indigency. . . .
(b) It shall be the responsibility of the chief probation officer assigned to each court to ensure that a person claiming to be indigent meets the definition of indigency under section 2. A person seeking the appointment of counsel shall be interviewed by the chief probation officer or the officer’s designee prior to the appointment of counsel. . . .
(c) . . . The chief probation officer or the officer’s designee shall sign the final report [Indigency Verification Results Form], certifying that the person for whom counsel was appointed either continues to meet or no longer meets the definition of indigency.
Further, the Massachusetts Probation Services (MPS) Records Retention Schedule requires that these forms be retained for a minimum of seven years.
Additionally, Section II(A)(1) of MPS’s Indigency Verification Protocols states,
Just prior to arraignment of a defendant claiming indigency, Probation Officers (PO’s) or Associate Probation Officers (APO’s) shall collect financial information on a standard statewide [Intake Indigency Report]. If Intake is not possible just prior to the arraignment, PO’s or APO’s shall complete it as soon as practicable.
Reasons for Noncompliance
OCP officials offered explanations of why documentation might sometimes be missing from files. However, there was no way to determine whether any of these explanations applied to the files we reviewed. Further, we found that OCP did not have monitoring controls in place to ensure that CPOs and/or their designees properly conduct and document indigency determinations.
OCP should establish monitoring controls over the indigency determination process to ensure that the required documentation is maintained in case files.
Probation was pleased to welcome the 2017 auditors to see if there has been improvement since the 2011 audit findings. The 2017 audit noted significant improvement in Probation's indigency verification practice, and statewide uniform policies and forms. The auditors found only 5 files without an intake form and only 3 files without a signed consent form. Probation offers information in addition to the audit findings because the indigency verification process is surprisingly complex when executed. Below is a non-exhaustive summary of the reasons for variation in the availability of records for the auditors and any variations in indigency verification practice. Probation shared this information with the auditors during the audit.
In some cases, Probation was unable or not required to conduct an intake and make an indigency recommendation to the arraignment judge because the defendant was in custody and automatically deemed indigent under [Supreme Judicial Court] Rule 3:10 during the audit period.
Also, defendants in lock up are not allowed to have a writing implement for safety reasons and cannot complete or sign an intake form or consent form. Some defendants are not sober, are detoxing, or not mentally stable preventing Probation from completing an intake or consent form. Some defendants refuse to provide any information. The defendant may not be a native English speaker and an interpreter may not be available at the time of the intake. Other times, there are so many defendants on the daily list that the judge does not wait for Probation to finish the intakes to make an indigency determination. If a defendant is in custody in another location, e.g. a house of correction, the defendant is not available for Probation to conduct an intake and get a signed consent.
In some cases, MPS completed an intake and consent form, and made an indigency recommendation to the judge via the paper intake form or orally but Probation did not retain the documents long enough for the 2017 audit. In these cases, the arraignment judge was fully informed of the financial information required to make an accurate indigency status finding and determination about indigent counsel appointments. Probation has been addressing the records retention issue by providing its staff with a policy and training. Nevertheless, Probation still faces an extreme shortage of space in many locations. A historic records overload means that staff may have had the requested records on site but been unable to retrieve them for the auditors. The records retention initiative is a long term effort.
With respect to Probation not being able to produce 15 of its Indigency Verification Results forms, the technology available to Probation from [the Department of Revenue and Department of Transitional Assistance] cannot be used without a social security number [SSN]. A not insignificant percentage of defendants who request appointed counsel do not have an SSN. Without the SSN, Probation cannot conduct a verification of a claim of indigency and there is no need for a consent form. Further, if a defendant has private counsel, no public monies will be expended and there is no indigency for Probation to verify.
Other situations do not require an intake, consent or verification. These situations include but are not limited to, (a) the court’s substitution of one appointed counsel for another, (b) the court’s assignment of stand-by counsel, and (c) the court’s assignment of counsel for a witness.
For all the above reasons, the lack of documentation in a few cases does not by itself support the auditor’s conclusion that, in each of these cases, the Commonwealth was not well served. There is insufficient evidence to reach that conclusion. Further, Probation has devoted and continues to devote resources to increase indigency verification and records retention training and compliance efforts.
CPCS is correct in stating that we found significant improvements in its indigency determination process since our last audit. Additionally, although we acknowledge that the instances described by CPCS in its response provide some reasonable explanations of why some documentation may be missing, we believe that, in these instances, case files should clearly indicate the reasons for any missing records. Moreover, as noted above, we found that OCP did not have monitoring controls in place to ensure that CPOs and/or their designees properly conduct and document indigency determinations. Finally, although the total number of problems we identified is low, this number was based on a judgmental sample of 80 case files. Therefore, although our sample can be used to determine whether a problem exists, it cannot be used to reasonably conclude that the problem is minor. In any instance, without the proper supporting documentation, the Commonwealth cannot be certain that those claiming to be indigent are in fact indigent and therefore eligible for appointed counsel.
|Date published:||February 28, 2018|