Massachusetts State House.
Policy Library

SJC Releases Ruling in Carrasquillo, on Lack of Criminal Defense Attorneys

April 02, 2020

Case arose from a Hampden County crisis, in which many defendants went unrepresented

The Supreme Judicial Court released its decision this week in Carrasquillo v. Hampden County District Courts, involving a shortage of available defense attorneys that left many indigent criminal defendants in the Springfield District Court without counsel. In keeping with our commitment to due process and the fair and efficient administration of justice, the BBA had filed an amicus brief in the case, recommending that the SJC consider “mandat[ing] the expenditure of funds at a rate sufficient to incentivize enough lawyers to become bar advocates” willing to take such cases.

The Court agreed with the premise of the BBA — and other amici who filed separately — that the proper solution to the prospect of a recurring constitutional crisis stemming from lack of available counsel for criminal defendants through the state’s public-defender agency, the Committee for Public Counsel Services (CPCS), is to increase the statutory hourly rate of pay for private attorneys who take on those cases.  

There is, however, one remedy on which the parties and nearly all the amici appear to agree: increasing the statutory rates of compensation for bar advocates. They have identified low rates of compensation for bar advocates as a major factor in discouraging private attorneys from accepting court appointments, and they argue that increases are urgently needed to encourage greater participation. We also note that the recent report of the Supreme Judicial Court Steering Committee on Lawyer Well-Being identified financial stress as a central issue affecting the well-being of privately assigned counsel, and it recommended increasing their hourly rates to address this problem.


To reach that conclusion, they echoed figures from the BBA’s brief showing how the inflation-adjusted value of those pay-scales has actually fallen in the 16 years since the SJC’s 2004 decision in Lavallee v. Justices in the Hampden Superior Court. The ruling also cites concerns raised in the BBA brief about the impact that overloading CPCS capacity would have on both the quality of representation provided and lawyer well-being. 

We understand that CPCS has discussed the shortage of bar advocates with the Legislature, and we are confident that the Legislature will take additional actions as necessary, “exercis[ing] prudence and flexibility in choosing among competing policy options to address the rights of indigent
defendants to counsel.” … While we have inherent power to ensure the proper operations of the courts and to protect them from impairment resulting from a lack of supporting personnel, O’Coins, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 510 (1972), “this inherent power is a duty which must be borne responsibly,” and “with due consideration for the prerogatives of the executive department and the Legislature…”

Nevertheless, the Court declined to invoke its own superintendence authority in order to adjust those rates upward, as the BBA had urged, instead leaving the matter to the Legislature. The ruling presents a strong case that the Legislature must act to increase not only compensation for private bar counsel but also for CPCS staff attorneys and assistant district attorneys (while acknowledging that some progress has been made on the latter two fronts in recent years).

Said BBA President Christine M. Netski of Sugarman Rogers, “We share the Court’s firm belief, as expressed in the ruling’s first sentence, that ‘[t]he right to counsel is one of the most fundamental principles in our criminal justice system,’ and we will continue to advocate for appropriate funding to preserve and maintain that right statewide.”

The petitioners challenge an order … that required the attorney in charge of the Springfield office of the Committee for Public Counsel Services (CPCS) “to provide counsel to Courtroom I in the Springfield District Court every day who shall accept appointments in all cases as ordered by the Court to represent clients at arraignment[s], bail hearings, hearings pursuant to G. L. c. 123, § 35, and any other matter that the Court deems necessary.” The First Justice issued this order in response to a shortage of available defense attorneys that left many indigent criminal defendants in the Springfield District Court without counsel.

The SJC’s ruling also vacated an order by a District Court First Justice that CPCS be required to provide counsel in such criminal cases as “the Court deems necessary”, as well as any resulting appointments of counsel. The Court held that CPCS attorneys can’t be required to take more cases than the agency determines it has the capacity for, and that when a shortage occurs, either CPCS or the regional administrative justice (RAJ) can trigger the so-called Lavallee protocols by filing a petition with the SJC’s Single Justice. 

Following up on their decision in Lavallee, where the BBA also filed an amicus brief, the ruling outlines the process to be followed when a court is affected by a shortage of qualified counsel that interferes with the prompt appointment of defense attorneys to represent those defendants. This clarifies the process that Lavallee established for such instances, so that trial judges will no longer be left to fashion their own remedies, as occurred here.

The Court took the opportunity to strongly urge Massachusetts attorneys to take such cases, citing both the social benefit, in the form of enhancing the integrity and accuracy of our criminal-justice system, and the benefit to the practice of law, in the form of additional opportunities to acquire courtroom experience. 

There has been concern in recent years over the disappearance of jury trials and the difficulty of finding opportunities for new lawyers to gain court room experience. Participating in bar advocate programs offers that experience. There is also a need for more attorneys to participate in the bar advocacy program. As described above, for a century Massachusetts attorneys regularly represented indigent defendants without compensation in capital cases, as a service to the community and the profession. A similar spirit of public service is needed now.

The BBA’s brief in this case was drafted by two attorneys from Foley Hoag LLP, Amicus Committee Co-Chair Neil Austin and Stephen Stich, and by former Amicus Committee Co-Chair Professor David Siegel of New England Law | Boston.

—Michael Avitzur
Government Relations Director
Boston Bar Association