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Voices: Argument/Counterpoint

More efficient legal services for the poor

The state can save millions by putting lawyers for the poor on the state payroll, instead of contracting for their services


Issue: Spring 2011

BY JAY GONZALEZ



thanks to a relatively strong economic recovery and our prudent fiscal management during the recession, Massachusetts is in a much better financial position than most other states. Read the response to this article here. Even so, we will be facing our most challenging budget in the upcoming fiscal year. While tax revenues are expected to grow as the economy continues to recover, the un­precedented drop in tax revenues during the recession created a hole that will take us years to climb out of. The expected tax revenue growth will also make up for only half of the federal stimulus funds that will no longer be available next fiscal year. As a result, the state budget next year will need to be $570 million less than this year’s budget, the largest cut in year to year spending in 20 years.

In the face of this new fiscal reality, Gov. Deval Patrick’s fiscal year 2012 budget proposal builds on the many reforms enacted during his first term with many new proposals to make government more effective and efficient. These proposals are necessary to preserve critical investments in our future, including historic levels of funding for our schools and for efforts to close the achievement gap among our students; investments in job creation and economic growth; and investments in programs that address youth and urban violence. These reform initiatives are also necessary to mitigate the extent to which we need to eliminate or reduce critical programs and services. We cannot avoid deep cuts that will have real impacts on people across the Common­wealth. We can and we must, however, take steps to change the way government does business to preserve as many critical programs and services as possible.

Toward this end, one of the many reforms Gov. Patrick has proposed is to change the way the state provides legal services for criminal defendants who cannot afford attorneys on their own. The state is constitutionally required to provide free legal services to indigent criminal defendants, and Gov. Patrick is committed to ensuring that quality legal services are provided to those legally entitled to them. The governor is also committed, however, to providing those quality legal services in the most cost-effective manner as possible. Just as state government has an obligation to provide quality legal services to indigent criminal defendants, it also has an obligation to be a good steward of the taxpayers’ money and to stretch every taxpayer dollar as far as possible to provide all of the programs and services people expect and deserve from their government.

The Committee for Public Counsel Services (CPCS) is the state agency that currently oversees the provision of free legal counsel to indigent criminal defendants and to others in certain limited civil cases. In this fiscal year, the total cost for this agency is projected to be $207 million—a $21 million dollar increase since fiscal year 2007 and a $100 million increase since 2003. Of the $207 million expected to be spent this year, CPCS is expected to spend over $160 million on bills from approximately 3,000 contract lawyers, called private bar advocates, who are given 90 percent of the cases and bill the state at an hourly rate. The remaining 10 percent of the cases are handled by full-time staff attorneys employed by CPCS. The agency as currently operated is one of the most expensive for the provision of public defender services in the country. Not only can we no longer sustain the rate of growth in costs that we have seen in CPCS over the last few years, we need to reduce costs in order to preserve as many other critical state services as possible.

The governor’s reform proposal would do just that, saving taxpayers $60 million a year once fully implemented while improving accountability and preserving quality legal services for those entitled to them. There are three major elements to his reform proposal.

First, the governor proposes to use state-hired public defenders to handle the current caseload instead of paying private lawyers hourly rates. Based on conservative estimates, the state would need to hire about 1,000 new lawyers to take on the caseload currently handled by the private bar advocates. This assumes that each public defender would have annual caseloads of only 200 cases per year, well below the 275 cases per year determined to be appropriate by the American Bar Association, the US Depart­ment of Justice, and the National Legal Aid Defenders Association. This conservative caseload assumption was made in order to ensure that the public defenders will not be overburdened and will be able to provide good quality legal services. Even with this conservative assumption about the number of new lawyers that would be needed, as well as conservative assumptions about all of the additional costs that would be incurred, including support staff, health insurance, unemployment insurance, pension costs, additional rent, supplies, and other overhead, this proposal to move to a state-staffed public defender system would result in tens of millions of dollars in savings.

It is important to note that this proposal is not made out of concern for the quality of services provided by the 3,000 private bar advocates and does not reflect a lack of appreciation for their work. It is also important to note, however, that the purpose of the program is not to provide private bar advocates with work. It is to provide indigent criminal defendants with quality legal representation as cost-effectively as possible. We are the only state in the country that contracts out 90 percent of its cases to private lawyers. Half of the 3,000 private bar advocates bill the state more in a year than the average annual salary of our full-time public defenders. A system that pays private bar advocates by the number of hours they work provides an incentive to take longer to resolve cases, not necessarily to achieve a better result. Based on our conservative analysis, we can provide good quality legal services to indigent criminal defendants with a state-staffed public defender system much more cost-effectively than we can through the current system that relies heavily on private bar advocates. Our proposal does, however, allow for the use of private bar advocates when necessary due to conflicts of interest or other extraordinary circumstances.

Second, the governor’s proposal would replace CPCS with a new, independent executive branch agency called the Department of Public Counsel Services. CPCS is a judicial branch agency governed by a 15-member board of lawyers appointed by the chief justice of the Supreme Judicial Court. Only six states in the nation provide public defender services exclusively within and under the control of the judicial branch. In Massachusetts, members of the CPCS board who govern the agency on behalf of the public are permitted to take cases from and be paid by the agency. Last year, four members of the board billed CPCS over $250,000 in the aggregate for the cases they took as court appointed private attorneys. While this practice is not prohibited under current law and there is no charge that any of these board members made decisions that were contrary to the public interest, this governance structure raises the potential for conflicts of interest. By making our public defender agency an independent executive branch agency overseen by a chief legal counsel to be appointed by the governor for a term co-terminus with the governor’s, the governance structure will be consistent with how more states provide public defender services, eliminate the potential for conflicts of interest, and improve public accountability.

Third, the governor’s proposal will institute a more rigorous process for ensuring that those receiving free legal services are in fact entitled to free legal services. Cur­rently, the Probation Department determines eligibility based on quick interviews with applicants and without cross-checking against any income records. The governor’s proposal would shift indigency verification to the new Department of Public Counsel Services and require that systems currently used to verify income levels of applicants for other state programs against Department of Revenue tax data be used to verify income-eligibility for public de­fender services as well. By tightening the eligibility determination process, the department’s caseload will de­crease and the fee collections from people deemed “able to contribute” to the cost of their counsel will increase. This is not about changing the income-eligibility standards; it is simply about doing a better job making sure those receiving free legal services are in fact entitled to them.

Our new fiscal reality demands that we change the way government does business to stretch every taxpayer dollar as far as possible. Gov. Patrick’s proposal to reform the way in which we provide public defender services is motivated by this imperative. We simply cannot ask taxpayers to pay $60 million more than is necessary to meet government’s obligation to provide quality legal services to indigent criminal defendants.

Jay Gonzalez is the state's secretary of administration and finance.

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