Mass. needs competitive pay for defense lawyers

Many Massachusetts bar advocates — the private lawyers who step in to represent criminal defendants who are too poor to afford an attorney — stopped accepting new cases late last month to protest lagging compensation rates for their work. The pay rates for those legal services, which roughly 80 to 90 percent of Americans accused of crimes need, are so low in Massachusetts that recruiting had become a struggle even before the stoppage.

A few weeks ago, when this editorial page wrote about the then-new stoppage, its impacts were mostly speculative. Now they’re real, and defendants are starting to feel the consequences. Lawmakers should fast-track a pay raise to make Massachusetts competitive with other states.

The work stoppage has added pressure at a critical time: Lawmakers are currently in conference committee, hashing out the entire state budget, due on July 1, which will include indigent defense compensation rates. The Committee for Public Counsel Services, the organization that handles indigent defense across the state and hires some of the lawyers who have stopped working, is lobbying lawmakers for pay raises while also handling the impact of the work stoppage.

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Legislators ought to listen to the committee. Ensuring that there are enough lawyers to uphold the constitutional right to representation enshrined in the Sixth Amendment should be a legislative priority. Whether in the state budget or in some other legislative vehicle, such as a supplemental budget, lawmakers should find a way to boost compensation rates across all categories of indigent defense, which span criminal, mental health, family law, and juvenile cases. Doing so would cost the state about $29 million annually.

Massachusetts’ minimum bar advocate rate of $65 per hour is an outlier in New England. Maine’s minimum rate is $150, New Hampshire’s is $125 to $150, and Rhode Island’s is $112 for most cases. Current rates in Massachusetts don’t reflect the complexity of modern court cases, the overhead costs private attorneys pay out of pocket, or the state’s sky-high cost of living.

The Senate’s version of the budget does boost rates — but only for mental health appointments and Superior Court cases.

The work stoppage is underscoring the critical work bar advocates produce. Since the stoppage began on May 27, the committee and its in-house counsel have struggled to provide attorneys for all clients that need them. Now, a slew of people accused of crimes are waiting, either in jails or out on bail — more than 150 people in Boston as of June 9, according to the Massachusetts Association of Criminal Defense Lawyers.

These numbers are estimates, and bar advocate participation in the work stoppage varies between counties. But leaders agree that the number of unrepresented clients across Massachusetts is already in the hundreds and will continue to grow. Without representation, defendants are forced to stay in jail for days without arraignment, a violation of their constitutional rights. As early as next week, the Supreme Judicial Court may have to consider implementing the Lavallee protocol, a precedent that requires the release and possible dismissal of cases for clients who have been held for too long.

A shortage of bar advocates has put courts under pressure before. In 2019, Hampden County couldn’t represent all of its clients, and a court instituted a day rate of $424 to incentivize additional private lawyers to handle arraignments. It was effective — and proved that low compensation really is a dissuasive factor for most private attorneys.

The legislature shouldn’t wait for the crisis to deepen to provide a pay raise for bar advocates. Waiting to act will force more defendants to languish without representation, risking case mismanagement or pouring money into finding other private attorneys willing to do the work. This doesn’t have to happen. The best way to solve this issue is to pay bar advocates fairly in the upcoming budget, allowing them to uphold the constitutional rights of their clients and ensuring due process across the Commonwealth.

Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.