After evaluating proposals that would move the Committee for Public Counsel
Service, the provider of constitutionally mandated legal counsel for indigent
defendants, to the Executive Branch, change the nature and composition of the
governing board, and mandate significantly greater reliance on staff attorneys
-- and correspondingly less reliance on private bar advocates -- to handle its
case load, the Boston Bar Association issued the following statement:
1. Under the United States and Massachusetts Constitutions, every
indigent person charged with a crime punishable by imprisonment is entitled to
competent legal counsel. CPCS is the state agency charged with the
responsibility of providing counsel in such cases. It does so under the
direction of its Chief Counsel, who reports to a governing board appointed by
the Supreme Judicial Court.
2. Although the board of CPCS is appointed by the Supreme Judicial
Court, it is and should be an independent agency. That the public defense
agency needs to be independent is the first of "Ten Principles of a Public
Defense Delivery System," published by the American Bar Association in
2002. The Boston Bar Association agrees with this principle of
independence.
3. The public defense function should remain in the Judicial
Branch. The ultimate responsibility for safeguarding civil liberties rests
with the judiciary, and the constitutional right to counsel in criminal cases
can best be preserved by keeping the power of appointing the CPCS board within
the province of the Supreme Judicial Court. Moving CPCS out of the
Judiciary to an elected branch of government would risk subjecting the
vindication of constitutional rights for indigent defendants to political
pressures. Additionally, there may be a conflict of interest, or at least
an appearance of a conflict of interest, in having the responsibility for
prosecuting crime and the responsibility for representing defendants in criminal
proceedings reside within the same branch of government.
4. The current structure of the CPCS governing board should remain
intact. A change to this structure that would allow some members of the
governing board to be appointed by elected officials would represent an
encroachment on the independence of the judiciary and of CPCS, and may conflict
with notions of separation of powers. Such a structure would give rise to
the same risks and apparent conflicts identified in point 3 above, all to the
potential detriment of indigent defendants’ constitutional right to
counsel.
5. Consistent with principles of independence, sound management, and the
delivery of effective legal services to indigent defendants, the Chief Counsel
of CPCS should be given the tools and the discretion to determine how best to
staff CPCS cases and manage its resources. In particular, he or she should
be entrusted with the responsibility of deciding how best to allocate matters
between staff attorneys and private bar advocates, how many staff attorneys CPCS
should employ, and how many and which private bar advocates CPCS should engage
to handle specific matters. The Chief Counsel should exercise this
discretion in a fiscally responsible manner, while ensuring that each CPCS
client is provided with the effective assistance of counsel competent to handle
the matter assigned. This discretion also should be exercised with full
transparency, and should include frequent informational reporting to all three
branches of government, explaining the Chief Counsels' staffing decisions and
justifying CPCS' requests for funding.
The Boston Bar
Association has a long history of staunch and outspoken support for adequate
funding to implement the right to counsel. In the late 1970s, we
established the Action Plan for Legal Services Project and recommended a
centralized system for the provision of indigent defense services. In
2004, we filed an amicus brief supporting adequate funding for the right to
counsel in Commonwealth v. Lavallee, and we strongly supported the
recommendations outlined in the 2005 Report of the Commission to Study the
Provision of Counsel to Indigent Persons in Massachusetts ("Rogers Commission")
to increase funding for the representation of indigent defendants. We have
done so in keeping with our mission as a bar association to facilitate access to
justice for all.