gov. deval patrick clearly doesn’t think much of the judiciary’s management skills. He’s filed legislation calling for a professional manager, instead of a judge, to oversee the trial court. He wants to move the patronage-plagued Probation Department out of the judicial branch and into the executive branch. And he wants to abolish the judiciary’s Committee for Public Counsel Services, which hires private attorneys to represent most indigent defendants, and replace it with a new executive agency staffed by 1,500 state employees he would oversee.
The public counsel proposal is by far the most ambitious of these. Patrick estimates he can save the state $60 million a year by using state lawyers instead of private attorneys to represent indigent defendants. That’s nearly a third of what it costs the state now to provide legal representation for poor people.
In this issue of CommonWealth, two people on the frontlines of this high-stakes debate argue their points of view. Jay Gonzalez, the governor’s secretary of administration and finance, makes the case for transforming the so-called public counsel service into a public agency within the executive branch of government. Arnold Rosenfeld, an attorney at K&L Gates and a member of the board of the Committee for Public Counsel Services, argues for keeping the operation within the judiciary and continuing the practice of using private attorneys.
The two sides are far apart. Gonzalez essentially says state workers can do just as good a job as private attorneys but at far lower cost. “The purpose of the program is not to provide private bar advocates with work,” he writes. “It is to provide indigent criminal defendants with quality legal representation as cost-effectively as possible.”
Rosenfeld says Gonzalez’s savings estimates are illusory, in part because he relies on faulty assumptions. Rosenfeld also questions whether it makes sense—or is even constitutional—to give the executive branch of government the twin responsibilities of both locking up criminals and defending them.
“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,” Rosenfeld writes.
Naively, I had always assumed that private attorneys stepped forward to represent indigent defendants largely out of a spirit of public service. In reality, there’s a lot of money at stake. Many private attorneys make their living handling indigent defense cases and a large percentage of them make more money than attorneys working for the state doing the same job.
There is an organization called the Massachusetts Association of Court Appointed Attorneys and it lobbies on Beacon Hill on behalf of its members. On the organization’s website, there is a sample letter that supporters are being urged to send to key House and Senate lawmakers. Under the governor’s proposal, the letter says, the newly hired state attorneys will be low paid and overburdened yet will still end up costing more than using private attorneys because of their pensions and health care. Worse yet, the letter says, the attorneys could unionize. (The letter doesn’t elaborate, but the union reference seems to be an attempt to tap into the angst created by the public sector union fight in Wisconsin.)
The bottom line, according to the association, is that the governor’s proposal won’t benefit taxpayers and it won’t benefit indigent defendants. The association’s letter dismisses the governor’s proposal by saying indigent defendants “deserve a genuine defense, not one in name only.”
Both sides in this debate raise legitimate issues. Rosenfeld’s concerns about the separation of powers need to be addressed, while Gonzalez’s cost savings, if they can be achieved without sacrificing the quality of representation, are impossible to ignore. The situation cries out for a quick, independent review of the costs associated with hiring state attorneys to represent indigent defendants. Perhaps this is an area where the new state auditor, Suzanne Bump, could jump in and play referee.