Public defender blues
The taxpayer tab for indigent defense keeps rising, but the lawyers who do the work are among the lowest paid in the country
Malden District Court is 50 shades of grim. The defendants in the packed courtroom—men and women, some young, most not—appear somber, resigned, or just plain petrified. The female judge whispers to attorneys. No one seems to know where the Spanish interpreter is, so the Portuguese interpreter does double duty. The court clerk yells out names and dates. Cell phones are banned, so a court officer kicks out a man who tries to use one.
| Public defender Anuj Khetarpal, right, discusses a settlement
at Malden District Court.
Anuj Khetarpal radiates calm. The court is usually even busier, but two days before Thanksgiving, it is “quiet” for the 32-year-old public defender. Khetarpal, who recently completed his first year on the job, chats with his fellow lawyers as he waits for his case to be called. Like some of the other young lawyers, he favors a trendy closely-cropped beard that jazzes up his dark-suited, lawyerly persona. His client, a short brunette in a pink fleece and blue jeans, steps forward slowly when the clerk shouts her name. She is charged with two counts of larceny for cashing two Social Security checks worth $2,168 that had been sent to her mother, who had died.
Khetarpal is on the case because his client is poor, which is the argument he makes in her defense. He huddles with a judge, a prosecutor, and a probation officer and they eventually reach a settlement. His client will pay $62.50 a month for five months, returning nearly 15 percent of what she took. She will also continue to perform community service.
All in all, it’s a pretty good deal. His client can move on with her life and Khetarpal can move on to his next case. The pace never seems to slow for the state’s public defenders, a group of state employees and private attorneys who collectively handle more than 220,000 cases a year. Gideon v. Wainwright, the landmark 1963 US Supreme Court decision, extended the Sixth Amendment right to counsel to state courts for a person who is too poor to pay. “In our adversary system of criminal justice, any person hauled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him,” Justice Hugo Black wrote.
The Committee for Public Counsel Services opposed the effort to move the agency into the executive branch and warned that the millions of dollars in savings would never materialize. The Legislature decided to strike a compromise. Instead of giving the agency enough money to hire 1,000 new staff attorneys, it provided enough money for only several hundred more. Instead of handing all of the agency’s cases over to staff attorneys, lawmakers approved giving them only a quarter of the cases. The agency continued to operate in the judicial branch and better screening procedures for clients were implemented.
| “I wanted to focus on people who are typically underrepresented and overlooked
by society,” says Khetarpal.
Two years later this experiment in budget management is having mixed results. The budget for CPCS fell slightly in 2012 compared to 2011, but then rebounded in 2013 to its previous level of $200 million. Staff attorneys are handling 23 percent of the agency’s cases instead of the target goal of 25 percent; the rest are being handled by private attorneys retained by the agency. The committee hopes its staff attorneys will reach the 25 percent target in the coming fiscal year, but that goal is proving difficult to achieve because the agency is having a hard time hanging on to the lawyers it employs. Last year, according to agency officials, nearly 12 percent of them left, defeated by the long hours and low pay.
The $40,000 starting salary of a full-time public defender in Massachusetts is among the lowest in the country. In New Hampshire, an entry-level public defender earns $44,998. In Vermont, the starting salary is $45,510. It’s $55,000 in Rhode Island and $62,000 in Connecticut. Georgia is the lowest in the nation at $38,000, while San Francisco County is among the highest at $98,000.
Khetarpal is paid $43,000 a year, a notch above the standard starting pay, largely because he came to the job with some previous experience. Still, it’s hardly a lot of money for someone with a law degree working 10- to 12-hour days who often comes into the office on weekends and occasionally works until midnight. He lives with two roommates on the first floor of a Jamaica Plain triple-decker, paying rent of $750 a month, which adds up to about a fifth of his salary. He has $50,000 in student loan debt, about half the national average for law school graduates, although he is exploring a federal program that would forgive the debt in return for 10 consecutive years of public service work.
Khetarpal’s friends in large law firms work the same unforgiving hours, but some of them make five times his salary. When Khetarpal gets together with them, they are fascinated by his courtroom stories. But for the most part they don’t understand the path he pursued. “They think I made a silly choice,” he says.
Khetarpal’s small office in Malden features a poster of Mahatma Gandhi high on the wall. A quote on the poster reads: “An eye for an eye makes the whole world blind.” Years before Gandhi championed Indian independence and nonviolent resistance, he was a lawyer in South Africa fighting apartheid. Gandhi’s legacy has had a tremendous impact on Khetarpal. “There are times when this job gets pretty stressful,” he says. “That’s kind of a reminder why you came into public defense in the first place.”
| Khetarpal goes over a court agreement with one of his clients.
After graduation from UMass, Khetarpal worked as risk engineer for Zurich Insurance, one of the world’s largest insurance firms. He was in a fast-track management training program with a corporate salary in the mid-$50,000 range that came with a bundle of perks, including a company car, cellphone, and Internet service. But after three years on the job, he decided that strategizing on how to pump up the profits of a large corporation was not what he wanted to do with his life. “I wanted to focus on people who are typically underrepresented and overlooked by society,” he says.
As Khetarpal explored fields like politics and community work, he found that many people in those fields had law degrees, so he went to Boston University School of Law, graduating in 2010. “As a lawyer, you are taken more seriously,” he says.
One summer during law school, Khetarpal helped organize a conference in India for International Bridges to Justice, an organization that helps train legal aid groups to assist people in developing countries. At the conference, he met a group of San Francisco public defenders who traveled to India at their own expense. They were “super enthusiastic” about their work, he recalls.
When the time for another summer internship rolled around, Khetarpal decided that a position at a large law firm did not suit him any more than the corporate world had. So he got in touch with one of the San Francisco public defenders. After a telephone interview, he headed to California, going to work in the San Francisco public defender’s homicide unit. He did a little bit of everything, including interviewing clients and writing motions.
Elizabeth Hilton, his supervisor there, says she is more cautious than most in her office about allowing interns to argue in court, but she decided that Khetarpal was ready to argue a motion for prosecutors to identify a confidential informant. Khetarpal won the motion, his first victory in a courtroom.
Hilton says Khetarpal understands what it takes to be public defender. “They have to be book smart, but they also have to have the ability to connect on a human level and with empathy and compassion for the underdog,” she says. “He definitely had that.” Today, Khetarpal finds that he connects well with his young defendants and says that some of his minority clients feel that, as a South Asian man, he has more empathy for their difficulties.
He is also versatile. At a BU law clinic, he had to switch sides and work as a student prosecutor in Quincy District Court. There, Khetarpal demonstrated that he could prosecute cases as well, a role that not every law student can handle, says David Breen, one of his former BU Law professors. “I’d like to think that has probably made him a better defense attorney,” Breen says.
| Khetarpal at his Malden office.
After graduating from law school, Khetarpal worked as a law clerk in the Texas Court of Criminal Appeals in Austin. The position, a prestigious one for a law school grad, enabled Khetarpal to dive into how legal decisions are made in the real world. In his first year, he wrote an opinion on the use of excessive force by law enforcement that he hoped would influence how police confront suspects trying to destroy evidence. Khetarpal considered staying in Austin, but with all of his family in the Bay State, he decided to return home.
Instead of heading to some well-appointed office suite, Khetarpal now rotates between courthouses in Malden, Somerville, Cambridge, and Woburn. At the end of November, he was in charge of roughly 55 cases. A quarter were larceny offenses, another quarter were assault and battery cases, and the rest were split between drug offenses and miscellaneous crimes such as disturbing the peace. Several cases involving drug evidence handled by former state chemist Annie Dookhan, who is now in prison for falsifying evidence, are also on his plate. About 70 percent of his cases include a felony charge in addition to a misdemeanor charge.
The number of cases is on the high end for a new lawyer, he says, but the day-to-day workload depends on the complexity of the case. Adding more cases to his workload would be a burden, he says. Public defenders do not have the same resources that are available to prosecutors, who can consult local, state, and federal law enforcement officers to help construct their cases. There are also a limited number of social workers who can look into treatment options for defendants who abuse drugs or have mental health issues or investigators to find and interview witnesses and gather physical evidence.
“There are so many moving parts for every single case,” Khetarpal says. “If I have 100 cases, I don’t have time to touch every single one of them. You can come up to a court date and not have done any adequate work or investigation on your client’s case. How do you fight a case if you really don’t know anything about it?”
Indigent defense reform
Jay Gonzalez thought he could save the state some money. The Patrick administration’s former secretary of administration and finance proposed doing away with the public defender system’s heavy reliance on private attorneys and bringing all the cases inside the state agency. He wanted to hire 1,000 new attorneys, move the agency into the executive branch, set their workload at 200 cases a year, and bring spending on public defender work under control. Even including the cost of health insurance, pensions, and work space for all the new state employees, he figured the state could save $60 million a year.
In an Argument and Counterpoint debate in the Spring 2011 issue of CommonWealth, Gonzalez said the state’s reliance on private attorneys to do public defender work was bad policy. He said the private attorneys had no incentive to rein in their hourly work and that half of them earned more than the state’s own staff attorneys. He even raised questions about the ethics of some of the private attorney job assignments. “The purpose of the program is not to provide private bar advocates with work,” he wrote. “It is to provide indigent criminal defendants with quality legal representation as cost-effectively as possible.”
Arnold Rosenfeld, a former public defender and a board member of the Committee for Public Counsel Services, responded in the magazine that Gonzalez was all wrong. He said Gonzalez didn’t understand the intricacies of defense work and his proposed reorganization could undermine the work the agency does. He added that the reorganization wouldn’t produce the expected savings.
A furious battle ensued that no side won. Gonzalez got some money, but only for enough attorneys to go from a 90-10 split between private and staff attorneys to a 75-25 split. The Committee on Public Counsel Services hired hundreds of attorneys, bought them computers and furniture, and found them office space.
The budget for private attorneys dropped from $117.5 million in 2011 to $98 million in fiscal 2013, but the agency’s overall budget, including the salaries of new attorneys and one-time costs for offices, furniture, and computers, has held relatively steady over the past two fiscal years. The share of work being done by staff attorneys is only at about 23 percent, in part because of the agency’s inability to keep attorneys from leaving. Most of those who are leaving have been with the agency less than three years. Total state costs have probably gone up because the budget numbers don’t include the cost of pensions for new employees hired.
“This is more than typical attrition and it’s certainly going to affect our ability to get to 25 percent,” says Anthony Benedetti, the chief counsel for the Committee for Public Counsel Services. “Attrition has always been a problem, but the gap between what we pay and the unions pay has really exploded.” The unions he is referring to represent attorneys in the executive branch of state government, where entry-level attorneys make $55,000 a year.
Anecdotally, Benedetti says he hears lots of stories about agency employees jumping to other public defender agencies in other states. “We’ve lost people to New Hampshire, to Connecticut, to New York,” he says. He’s also got employees working second jobs to make ends meet. David Grimaldi, who was hired at the public counsel agency in 2007 at a salary of $37,500, worked in a wine shop until the late nights and weekend work forced him to give it up. “I certainly miss that extra money,” he says.
Benedetti has always been skeptical that the Patrick administration’s plan to transition to staff attorneys would yield a lot in savings, but he says the agency has done its best to comply with the goals of the legislation. A company has been hired to evaluate how the reforms have worked and will report back in the spring. He fully expects the report to say that savings have been minimal. “Certainly not the millions that were talked about,” he says.
Patrick administration officials declined comment on the cost-saving efforts at the Committee for Public Counsel Services.
Look for the union label
In the $217 million funding request being prepared for the upcoming fiscal year, the Committee for Public Counsel Services has proposed a salary increase that would put entry-level public defender salaries at $50,000, closer to parity with their executive branch counterparts who make $55,000 a year. The proposal includes modest hourly wage increase for private attorneys.
Agency officials say they need a pay increase for staff attorneys to stem attrition. Talk about dramatically reducing the agency’s budget seems to have subsided, at least for now. The only cost-saving moves agency officials talk about now are enhancing social service programs to keep people from committing crimes in the first place and decriminalization of minor drug and driving offenses. Since voters approved a 2008 ballot initiative to make possession of an ounce or less of marijuana a civil rather than a criminal offense, the public counsel agency estimates its caseload has dropped, yielding savings of nearly $4 million.
It’s unclear whether the Legislature will go along with a big pay increase for public defenders. (There is also talk that the state’s district attorneys will seek a pay increase for their assistant DAs, who make even less than public defenders.) Part of the reason for skepticism is the public’s low opinion of public defenders. One public defender, blogging at “Confessions of a Trial Addict,” describes how Law and Order, the popular TV drama, negatively portrays her profession. “Without a doubt L&O portrays public defenders and/or legal clinic lawyers as the most unprepared, sloppy, least legally informed dimwits,” she says.
State Sen. Gale Candaras, a Wilbraham Democrat and vice chair of the Joint Committee on the Judiciary, says the public doesn’t place a high value on indigent representation. Ask people to rank 10 priorities, from education to taxes to public health, but also include public defense, she says. “I guarantee you it’s going to come in tenth every time.”
Some public defenders are not content to wait for the Legislature to give them a raise and are taking matters into their own hands. Public defenders in New Hampshire, Vermont and New York are unionized, but past efforts to unionize public defenders in Massachusetts have always fizzled out. However, a group of attorneys at the agency recently recruited SEIU Local 888 to help spearhead a new push. Massachusetts public defense attorneys cannot bargain collectively due to a technicality under current law, so the group first needs to win passage of a bill pending in the Legislature that would allow them to form a union. Organizers say that any union that is created would also include the agency’s social workers, investigators, and other staff members.
“What it means is that we have a voice in the process, so that we can advocate for ourselves just like we advocate for poor people in the courtroom every day,” says Ben Evans, a staff attorney and member of the union organizing team.
The Committee for Public Counsel Services does not have a position on the union, according to Benedetti.
“I don’t think there’s any reason why they shouldn’t be able to bargain collectively,” says state Sen. Will Brownsberger of Belmont, who chairs the Joint Committee on Public Service, which heard testimony on the bill. “It certainly makes sense for them to have the ability to assert their economic interests, and I think that it is in the interests of the public to have a more stable work force,” says Brownsberger, who as a private attorney represented indigent defendants.Khetarpal supports the union-organizing effort, which he believes would help stanch high turnover at the agency. “You don’t want inexperienced judges,” he says. “Why do you want inexperienced lawyers?”
The young attorney is passionate about his work, but there is frustration, too. The criminal justice system has come a long way since Gideon, but Khetarpal and his peers wonder how long they can keep battling their finances before something has to give. “It’s not a sustainable lifestyle based on the remuneration that you get,” he says. “You are going to lose a lot of great attorneys and it is going to have a negative effect on the ability of the indigent to receive effective representation.”