THE STATE’S HIGHEST court is being asked to insert itself into a standoff between lawmakers and public defenders involving the pay rate for private lawyers who represent indigent defendants in Massachusetts. Supreme Judicial Court justices on Wednesday seemed torn between respecting two core constitutional guarantees – the right of defendants to legal representation and the separation of powers that gives the Legislature authority over appropriating state money.  

Over the course of 70 minutes of arguments by the two sides, and pointed questioning from the justices, none of the SJC’s seven judges appeared eager to snatch the power of the purse from Beacon Hill lawmakers. 

Public defenders in Middlesex and Suffolk counties have been overwhelmed by their caseloads since May, when the private attorneys that represent most indigent defendants stopped working to protest persistently low wages.  

The Legislature in July took a swing at addressing the bar advocates work stoppage by raising hourly wages $20 over two years. But the public defenders say the lawmakers didn’t go far enough, and they’re asking the court to order better pay rates to ensure that the thousands of defendants impacted by the stoppage have access to lawyers.  

The Committee for Public Counsel Services (CPCS), the public defender office that oversees the state’s bar advocates, asserted in its arguments that justices have both the power and responsibility to remedy this serious constitutional conundrum.  

As of Wednesday, more than 900 defendants in Middlesex and Suffolk counties have no lawyers, CPCS attorney Rebecca Jacobstein told the justices. More than 100 new people are coming in with new cases each week, she said. 

“Legislative action, which has improved the problem, has definitely not solved it,” she said. But the SJC should simply set a new rate until lawmakers improve their offer, she said. 

The lower courts and prosecutors have a different request for the justices: respectfully, stay in your lane. They urged the SJC to keep out of the rate-setting showdown.  

“The power at issue in this case is fundamentally and quintessentially legislative,” Assistant Attorney General Marina Pullerits said on behalf of the district courts and Boston municipal courts. The lower courts’ position, she said, is “there should be no circumstances where the courts cross one particular line, and that is judicial rate setting.”  

Courts are loathe to insert themselves into the business of other co-equal branches of government. State law gives the Legislature the power to set the pay rate for bar advocates – who handle roughly 80 percent of indigent criminal defense cases in Massachusetts.  

Pay for Massachusetts bar advocates has long lagged other New England states. Bar advocates in Massachusetts make $65 an hour, while advocates elsewhere in the region make more than $100 an hour.  

When the private attorneys stopped work, the staff lawyers at CPCS were immediately overwhelmed and unable to keep up with the caseloads. 

All defendants are constitutionally entitled to legal representation, even if they can’t pay for it. In 2004, the SJC set out a protocol for how to handle cases when the state is unable to provide a lawyer to a defendant. In July, a single SJC justice green-lit the Lavallee protocol. This creates a special hearing process where judges order defendants released if they have been held without counsel for more than seven days or order their charges dismissed if they have lacked counsel for 45 days. 

Dismissed cases could be brought again, but without a resolution of the pay dispute there may still be too few lawyers to take up a case on another pass. Jacobstein said that this sticks defendants on a “merry-go-round.”  

The seriousness of the crisis is not in question. The courts, public defenders, and prosecutors all acknowledged that the pay rates are not high enough to attract the number of bar advocates needed to handle all of the criminal cases involving indigent defendants. The question is, who has the authority to do something about it? 

People may be released with serious criminal charges because they can’t access an attorney, noted Justice Frank Gaziano. He asked Assistant District Attorney Elisabeth Martino how public safety factors in, or if the expectation is that the high court must “just wait until something horrendous happens before we can act.” 

The process is unfolding as the state Constitution demands, attorneys for the courts and the district attorneys’ offices said. Dismissing the cases is the remedy for people without counsel, Martino said, and while she has “grave concerns for public safety,” she said, “political pressure cannot cause this court to overreach.” 

On the core constitutional question, Gaziano pointed out that 900 people without access to lawyers is “really bad.” 

Matino and Pullerits asked the court to let the process play out and declare that the judiciary should not be empowered to set pay rates for bar advocates. Justices could, Pullertis said, declare the rate too low but not set a higher one. 

There is a new incentive program to tempt bar advocates back which just started this past week, the legislative accord raising pay $20 would roll out over the next year and change, and CPCS should be able to hire more staff attorneys under the new law. Plus, the state inspector general has been asked to prepare a report on the impact of pay rates on indigent defense, and the Joint Committee on the Judiciary heard testimony on a proposal to raise bar advocate pay on Tuesday. 

Lawmakers are hardly rolling in unlimited funding, justices noted. Beacon Hill’s pay raise was more than CPCS initially requested, said Justice Scott Kafker, but it wasn’t enough for the private lawyers.  

“Can we really kick that amount up, just pick the number, or do we stay on our side of the separation of powers and do everything we can on our side?” he asked. “Because the Legislature’s got a lot of competing problems,” Kafker said, ticking off issues regarding the homeless, food assistance, and mental health care.  

“You have to do something,” Jacobstein responded. “Because right now we are in a perpetual state of emergency, where people are perpetually not getting lawyers. … It’s just not okay.” 

CPCS will ask Justice Dalila Wendlandt, in a single justice hearing next week, to refine the Lavallee protocol. The time frames should be shorter, Jacobstein said, and cases should be dismissed without prejudice so the same defendants can’t be hauled in on the same charges over and over again. 

Far from the courts violating the separation of powers under Article 30 of the Massachusetts Declaration of Rights, she said, “right now it’s the Legislature that’s violating Article 30” by underfunding a core piece of the judicial system and hampering its ability to operate. 

The ACLU of Massachusetts submitted a brief in support of the bar advocate pay raise. Its legal director, Jessie Rossman, said in a statement after Wednesday’s arguments that the court should declare the current compensation for bar advocates unconstitutional and immediately set a temporary rate “until the Legislature develops an adequate solution.”  

“When the state fails to create a system where indigent defense attorneys can afford to do their work, the most vulnerable defendants pay the cost,” Rossman said. “That is exactly what we’ve seen over the past five months, with more than 7,000 indigent defendants going without representation. But this problem is not new, and neither is the court’s role in resolving basic constitutional violations. Given the Legislature’s repeated failure to sufficiently address this crisis over the past 20 years, the court must step in and exercise its authority to protect the constitutional right to counsel.”