the committee for Public Counsel Services (CPCS) board and management staff have no quarrel, and in fact are in agreement, with the overall point made by Secretary Gonzalez. We feel that legal services to the indigent, required by law to be provided by CPCS, should be supplied in the most efficient and economical way as long as the quality of representation is not compromised. Where we differ is how to accomplish this goal.
We believe that the proposals for change described by Secretary Gonzalez and in the governor’s budget are ill-advised and rely on some erroneous assumptions. In particular, we think the plan to hire 1,000 new full-time public defenders and 500 support staff and to place what is now CPCS into a new, independent executive branch agency is misguided, will not save the $60 million Secretary Gonzalez claims, and is in violation of the “separation of powers” clause of the Massachusetts Constitution.
We also are seriously concerned that the adoption of this proposal will compromise a legal services program that is the paradigm for other states. Nevertheless, we agree that we must find new ways to make available the services that we are mandated to provide by the federal and state constitutions and by statute, while reducing, or at least slowing the growth, of the CPCS budget. We enthusiastically accept the responsibility for working with the governor and the Legislature to achieve that goal.
There are a number of problems with Secretary Gonzalez’s proposals. First, his claim that the new proposal will save $60 million in the budget relies on the incorrect notion that every single case in which CPCS provides representation is a district court case. Murder cases, superior court felony assignments, civil matters, such as cases related to children and families, civil commitments, and mental health cases all are more complex than district court cases and inevitably will take more time and be more expensive than district court cases.
Furthermore, the governor’s budget proposal fails to provide funding for cases where private bar appointments must be made when there are conflicts of interest, as is required by the Massachusetts Rules of Professional Conduct (ethical rules for lawyers in Massachusetts), either because there is more than one defendant in the matter, or one of the full-time public defenders concurrently is representing or previously has represented a person directly adverse to the present client. Based on our data, these conflicts arise in about 25 percent of criminal cases and in as many as 75 percent of children and family law cases.
Secretary Gonzalez undervalues the cost benefits that come with private bar representation, which include the fact that in the privately assigned cases, the Commonwealth does not have to pay for health insurance, retirement, office support staff, office space, and equipment, all of which will be required for the 1,000 new state lawyers and for the 500 additional support staff that will be needed. In addition, he fails to grasp that the cost of training the 1,000 new lawyers is much more substantial than the training required of private attorneys, who are not paid by the state for training.
Another significant, and perhaps insoluble, problem with the governor’s proposal is that shifting CPCS services from the control of the judiciary, and specifically the Supreme Judicial Court, where it has been since its inception in 1960, to the executive branch, runs afoul of the “separation of powers” provision of the Massachusetts Constitution. Article 30 of the Massachusetts Declaration of Rights prohibits the other branches (executive and legislative) from exercising judicial powers. The SJC, in Abodeely v. County of Worcester, has held specifically that the provision of defense lawyers to the indigent is one of the SJC’s inherent powers. Furthermore, the SJC has exercised its inherent authority to oversee the system for assigning counsel for indigent murder defendants since 1807, and its right to do so has been formally recognized by the Legislature since 1820.
Transfer of oversight of the public defense to the executive branch, as proposed in the governor’s budget, would also raise serious ethical problems for CPCS lawyers. The separation of powers provision of the state constitution operates to prevent an unconstitutional conflict of interest between the executive and the judicial branches. If CPCS were transferred to the executive branch, CPCS lawyers handling cases related to children and families or mental health would be pitted against lawyers from another executive branch state agency such as the Department of Children and Families or the Department of Mental Health.
In addition, public safety is quintessentially an executive function while the public defense is quintessentially a judicial function. It is not hard to imagine who would be given priority in budget and staffing between the State Police, who investigate and arrest alleged criminals, and CPCS, which has the highly unpopular duty of defending persons charged with even the most heinous crimes, a duty in which representation of a criminal defendant is conducted with total concern for the zealous protection of the individual’s constitutional rights without consideration for the possible impact on the public safety. The long-run possibility of serious interference by the executive branch in the conduct of the public defense over which it has oversight is exactly why the “separation of powers” was adopted.
The tangential point Secretary Gonzalez brings up regarding the potential for a conflict of interest involving the four members of the CPCS board who last year received assignments and were paid for their work on those cases is a red herring. The CPCS board is appointed by the SJC. The SJC’s appointments to the CPCS board include individuals with a variety of backgrounds, including law professors, large and small firm lawyers with both prosecution and defense experience, former public defenders, a federal defender, former legislators, as well as some lawyers who take assignments of cases. These latter members of the board add the perspective of lawyers currently experiencing the same difficulties as the other lawyers who take assignments. They often point out problems and propose ways for management to deal with those problems. The board plays no role in these or any appointments, the setting of rates, or the amount paid to any lawyer. There is no potential for conflict of interest under either the state ethics laws or the Massachusetts Rules of Professional Conduct.
The argument that other states have adopted the governance structure proposed in the governor’s budget is not pertinent. Of the 13 states whose public defender agency operates out of the executive branch, three have no written separation of powers provision in their state constitution, nine have separation of powers provisions that have been substantially weakened by a qualifying clause, and one has no explicit requirement for separation between the branches of government as we do. Under the circumstances, there is no good reason why a transition from the judiciary to the executive would be appropriate.
We support Secretary Gonzalez’s proposal to implement changes in the verification system for determining indigency. Indeed, these changes were authorized in 2005 by the Legislature. We agree that by using Department of Revenue tax data and Department of Transitional Assistance methods, significant savings can be achieved. Despite legislative authorization, the enhanced verification protocol has never been implemented. By adopting Department of Transitional Assistance verification methods and fully implementing the 2005 legislation, we believe significant savings can be achieved, and there is no reason why these methods should not be put into practice immediately. We also submit that it would be a mistake to transfer the responsibility for this task from the Probation Department to CPCS. Probation is perfectly placed in the courts to collect and verify this information with its existing staff while CPCS has no experience or capability to carry out this duty.
We also support complete implementation of the recommendations made by the 2005 Commission to Study the Provision of Counsel to Indigent Persons in Massachusetts (the Rogers Commission) regarding converting some minor crimes to civil infractions or crimes which do not have incarceration as an option. Both of these options eliminate the constitutional right to counsel. Some of these changes were made in the fiscal year 2010 state budget. Based on comparisons with spending in the previous three fiscal years, they resulted in an estimated savings of more than $1.7 million over the first six months of implementation through a reduction in counsel assignments. We estimate that from fiscal year 2007 through September 30, 2010, there could have been savings of approximately $6.6 million. We are confident that, if the additional offenses identified by the Rogers Commission were converted, it would further decrease the number of assignments requiring counsel appointment.
CPCS recognizes that every effort must be made to avoid unnecessary expenditures in this time of fiscal crisis. The committee is working with its staff to consider initiatives that would reduce costs, and we intend to evaluate any and all suggestions. We believe that with our experienced board and management team, we can achieve savings without reducing the quality of representation for all indigents entitled to counsel. We look forward to working with the governor’s staff and the Legislature to implement appropriate modifications to the present system.
Arnold R. Rosenfeld, an attorney at K&L Gates, is a Committee for Public Counsel Services board member. He was a public defender for 16 years, and the first chief counsel of CPCS.