THE OFFICE OF THE INSPECTOR GENERAL recently released its long-awaited report on indigent defense in Massachusetts, accompanied by grand announcements about a broken system for fulfilling the state’s obligations to uphold the right to counsel when accused of a crime.

The report was conducted pursuant to legislation enacted to identify flaws in the current indigent defense system after a record number of court-appointed lawyers declined to accept new cases during the summer of 2025, citing inadequate payment rates, leaving thousands of individuals facing criminal charges without a lawyer.

Despite taking a year to investigate the complex and nuanced issues involved in providing indigent defense, the 150-page report contains a glaring omission. The report places blame at the feet of the Committee for Public Counsel Services, the state agency which is responsible for ensuring that people too poor to afford their own lawyers have representation when they are accused of crimes as well as the courts, the Probation Department, and the lawyers who provide this constitutionally required representation at a fraction of what they could be making in any other type of legal work.

In its 42 findings, the report blames CPCS for not having full-time salaried staff attorneys take enough cases during the crisis as well as before and after. It proposes that CPCS conduct more audits of the work of court-appointed lawyers and cap the number of hours they can work on a case.

The report blames the Probation Department for failing to adequately evaluate indigency when assigning lawyers and blames the courts for waiving fees charged to people so poor that they can’t afford a lawyer. What the report makes no mention of is the role over-prosecution and over-criminalization play in the state’s counsel crisis.

The right to counsel is not universal. In fact, the right to counsel in Massachusetts is only guaranteed if the charge that the defendant is facing carries the possibility of incarceration.

Every day, courtrooms across the Commonwealth are packed with people charged with low-level offenses, nearly all carrying the possibility of incarceration, and persons overcharged by overly aggressive prosecution. Charges that do not carry the possibility of incarceration are few.

Individuals whose cases are so minor that they will never be incarcerated sit in the courtrooms waiting to be appointed a lawyer. Prosecutors across the Commonwealth regularly charge people as aggressively as possible to gain the upper hand in forcing a plea, creating in the process more work for the lawyers assigned to the cases. These charging decisions do not exist in a vacuum, and there has been much discussion in recent years about the racial disparities in the criminal justice system.

A 2020 study conducted by The Criminal Justice Program at Harvard Law School found that racial and ethnic differences in the type and severity of initial charges account for over 70 percent of the disparities in sentence length. Bringing both more serious charges than the facts warrant and charges in situations where criminalization is unnecessary adds to the financial burden on indigent defense.

Prosecutors in Massachusetts wield broad authority. They decide whether to charge, what to charge, and how aggressively to pursue a case. When discretion is used to maximize exposure rather than to calibrate charges to culpability, it can not only distort outcomes but also add to the Commonwealth’s need for appointed counsel.

Overcharging has become an accepted practice, and attention is rarely paid to charging decisions. A prosecutor can overcharge by adding multiple counts to a single incident or charging a more serious charge than the facts warrant.

Both methods help prosecutors gain the upper hand in plea negotiations, but this very tactic requires the defense lawyer to spend more hours on the case. While charging decisions are complex, the fact that a report on indigent defense fails to address this variable in the system’s cost is a critical oversight.

Any observer of the district and municipal courts, where most of the expense of indigent defense is incurred, knows that a large percentage of cases involve minor offenses that are unlikely to result in incarceration.

For example, in 2025, there were 21,683 cases brought in the Commonwealth under laws that criminalize driving with a suspended or revoked license or registration and provide for imprisonment. In each of these cases, if the defendant was found to be indigent, a lawyer was assigned, and that lawyer was constitutionally required to spend time defending against the allegations.

These hours and cases add up, and they can’t be discounted in any sort of accurate analysis of the indigent defense system. Decriminalizing lower-level offenses for which there is almost never an incarceration sentence would significantly reduce the number of people in need of appointed counsel.

Future conversations about the indigent defense system in Massachusetts cannot ignore the realities of how over-prosecution and overcharging are part of the reason for the price tag on indigent defense.

Shira Diner is a lecturer and clinical instructor at the Criminal Defense Clinic at Boston University School of Law.