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.
