FIFTEEN YEARS AGO, in Lavallee v. Justices in the Hampden Superior Court, the Massachusetts Supreme Judicial Court addressed the shortage of attorneys available to represent indigent criminal defendants in Hampden County, which resulted in persistent denial of the right to counsel under the state and federal constitutions. The cause of the shortage was no mystery: the low compensation for private attorneys who represent these individuals as “bar advocates.” The Lavallee court urged the Legislature to find “a permanent remedy” for this “systemic problem of constitutional dimension.” The remedy just might be for these criminal defendants to become civil plaintiffs.

Today, as CommonWealth recently reported, the SJC faces the identical issue in Carrasquillo v. Hampden County District Courts. Though the Legislature responded to Lavallee by bumping up compensation rates for bar advocates, it did nothing to ensure that those rates would continue to increase over time. Chastened by the post-Lavallee experience that has left them earning about $30 an hour after expenses, some attorneys are unwilling to wait for the Legislature to act. In an amicus brief filed in Carrasquillo, two groups, the Hampden County Lawyers for Justice and the Massachusetts Association of Criminal Defense Lawyers, have argued that the SJC can remedy the problem by ordering an increase in bar advocate compensation rates.

Court-ordered expenditures are not entirely without precedent. The SJC has held, for example, that the judiciary has inherent authority under the state’s constitution to compel the disbursement of funds to ensure a court’s essential functioning. In a 1972 decision, O’Coins, Inc. v. Treasurer of County of Worcester, the court concluded that a judge may obtain “required goods or services by appropriate means, including arranging … for their purchase and ordering the responsible executive official to make payment.” Nonetheless, the SJC has never suggested that its inherent authority extends beyond goods and serves related to the functioning of a particular court.

A court-ordered increase in the compensation rates of bar advocates would raise separation of powers concerns. As Justice Scott Kafker noted at oral argument in Carrasquillo, the court “can only deal with what the judiciary can do, and the judiciary can’t order a pay increase.” Even if the SJC could order a pay increase, it might prefer not to invite similar requests for other services that are inadequately funded by the Legislature, which might implicate the ability of persons to defend themselves in court.

Still, the right to counsel is arguably different. And there is another precedent by which advocates could secure representation for criminal defendants—one that would allow the courts to enforce payment for the right to counsel without involving judges in directly setting compensation rates that ultimately will be paid from the state treasury.

That precedent is Bates v. Director of the Office of Campaign and Political Finance, the 2002 decision addressing public funding for political candidates under the clean elections law. That law, enacted through the initiative process, aimed to provide public campaign funding to candidates for certain statewide offices who agreed to limit the amount and sources of private funding they would seek.

Contrary to Article 48 of the Massachusetts Constitution, the Legislature declined either to repeal or appropriately fund the law. The Bates court held that a candidate’s pledge to abide by the requirements of the law created a statutory obligation on the Commonwealth to provide the candidate “the benefit of the clean elections bargain.”

Notwithstanding the SJC’s confidence that the Legislature would honor its legal obligation, it didn’t. So, the plaintiff-candidates returned to court for a remedy. Since their claims against the Commonwealth were unsatisfied, they were creditors of the state and entitled to a levy of execution on tangible state property – in lay terms, the power to seize and sell the state’s stuff. Reasoning that it lacked any way to compel the Legislature to act, the court ordered the remedy of execution and allowed the sale of over a dozen state-owned vehicles, after exhausting a state fund to satisfy legal judgments, to pay a clean-elections candidate. The Legislature thereafter repealed the clean elections law.

Criminal defendants in Hampden County without access to counsel stand in the same position as the candidates who had agreed to abide by the requirements of the clean elections law. Like the plaintiffs in Bates, they are legally entitled to a particular benefit from the Commonwealth: representation in their criminal cases. It follows that they could pursue civil actions similar to those of the Bates plaintiffs. Because the Legislature failed to provide them the representation to which they are entitled, they can seek relief in the form of funds sufficient to allow them to retain their own counsel.

This one-defendant-at-a-time approach avoids the potential separation of powers issue created by a court simply ordering an increase in the compensation rate for bar advocates. Instead, the judicial role would be limited to determining whether, in a particular case, the criminal defendant – now a civil plaintiff – had sufficiently established the need for representation and identified Commonwealth property upon which the court could execute the judgment to secure the funding for that representation.

It shouldn’t take more than the seizure and sale of a few State Police vehicles to get the Legislature to address bar advocate compensation in a more systematic way and find a workable solution to a problem that, in the end, only the General Court can solve.  If not, with 1,600-odd troopers, there are probably enough cars to fund plenty of hours of bar advocate representation.

Lawrence Friedman teaches constitutional law at New England Law|Boston and is the co-author of The Massachusetts State Constitution (Oxford 2011). David Siegel teaches criminal law and criminal procedure at New England Law|Boston and is a member of the board of directors of Suffolk Lawyers for Justice.