LOWELL — In courtrooms last week, lawyers were forced to do some quick math with high stakes.
The public defenders in Lowell District Court already had a heavy caseload but used two of their remaining slots for the most serious cases: one man accused of child rape, and another charged with gun offenses and domestic violence.
If the public defenders had not done so, Judge John Coffey may have been forced to release them rather than keep them in jail — a new crisis facing judges in Suffolk and Middlesex counties amid an ongoing work stoppage by court-appointed private attorneys.
It’s a conundrum arising from a system that is unique to Massachusetts and a handful of other states and that is at the mercy of the state Legislature. Roughly 80 percent of indigent defendants in Massachusetts are represented by private attorneys, known as bar advocates, with the remaining staffed by attorneys at the Committee for Public Counsel Services. So the bar advocates’ refusal to take on new clients until they receive a pay raise from the Legislature has effectively crippled the courts’ ability to proceed with those cases.
Thousands of such defendants in criminal cases in Middlesex and Suffolk counties have gone without representation, more than a month for some. This threat to their constitutional right to counsel has forced judges to release defendants otherwise eligible to be held on high bail.
Soon, judges may start dismissing cases outright, based on an emergency protocol invoked in early July by the Supreme Judicial Court.
“Things are going to get worse before they get better,” Coffey said in court as he weighed which defendants must be released from jail because there was no way of providing them a lawyer.
The stoppage has raised questions about how the state organizes its indigent defense system. In many other states, the majority of defendants who can’t afford an attorney are represented by a public defender from a government agency, and the court only appoints private attorneys if there’s a conflict of interest, according to Aditi Goel of the Sixth Amendment Center. Only Massachusetts, Maine, and North Dakota rely this heavily on private attorneys, she said.
Other states, such as New York and Ohio, task each county with choosing their own approaches, using any combination of public defenders, court-appointed lawyers, or contracted nonprofit organizations.
“There’s no correct answer,” said Goel, a former public defender in Boston. “But this is an opportunity for Massachusetts to look at how it structures its system as compared to other states.”
Massachusetts had a similar work stoppage in 2004 in Hampden County, which led to the creation of what is known as the Lavallee protocol. The Supreme Judicial Court invoked the protocol two weeks ago, affirming the right to counsel. It requires judges to release defendants who’ve been held for more than seven days without access to a lawyer and to dismiss cases of those who’ve gone without an attorney for more than 45 days. Hearings to release people through the seven-day rule began this past week, and separate proceedings to dismiss cases will start July 22.
The number of defendants affected by the current stoppage has already far outpaced those affected more than two decades ago.
“This is a problem that has happened in the past and unless there is a structural shift the concern is that it will happen again in the future,” Goel said.
Maine, which has a similar structure for indigent defendants, also was hit with a work stoppage three years ago. In response, the state hired more staff public defenders and nearly doubled its pay rate for private attorneys, to $150 an hour, from $80.
“You have to create a healthy mix,” Goel said.
Massachusetts officials say they are discussing ways to resolve the crisis with the private attorneys. But the new state budget recently adopted did not include a pay raise for bar advocates, and a resolution doesn’t appear to be nearing. In a statement, a spokesperson for Governor Maura Healey said the governor expressed concern and urged the Legislature and bar advocates to reach a resolution.
In Massachusetts, bar advocates in district court make $65 an hour, much less than the equivalent in surrounding states. They are seeking a $35-an-hour raise.
“We’re sick of being overlooked and taken advantage of year after year after year,” said Elyse Hershon, a bar advocate in Suffolk County who has stopped taking cases. “We keep the system intact and we have to be paid in accordance with that.”
The chair of the state Senate Judiciary committee, Lydia Edwards, an East Boston Democrat, said tactics by bar advocates, particularly during a difficult budget cycle and cuts to federal funding, have bothered Beacon Hill leaders.
“There’s a real anger about the bargaining chip being human capital and civil liberties, and that being the reason why we’re supposed to pay $100 million dollars,” she said, referencing the amount legislators calculate the $35-a-hour raise would cost.
With the stoppage showing no sign of ending, the court system, judges, staff public defenders, and prosecutors are scrambling to manage cases under the Lavallee protocol.
“We are constantly rearranging the deck chairs on the Titanic,” Rebecca Jacobstein, of the Committee for Public Counsel Services, said in court this past week.
Over the last week, the crisis was evident in courtrooms from Boston to Lowell. Defendants begged judges for lawyers; some are held, others released. The public defenders with the services committee say they will staff the most serious cases, a pledge that will be challenged as new cases come before the courts.
This past week, about 20 people had the first hearings under the protocol, with more than half remaining in custody because either they were assigned a lawyer or the public counsel committee was directed to prioritize their cases. Several of those released are accused of drug offenses or violating probation, though one released man is accused of putting his wife in a headlock until she passed out and another of stabbing someone with a switchblade. Judges ordered those men to home confinement monitored by GPS.
Meanwhile, a third county, Essex, is “teetering” on the verge of having too many defendants without representation, Jacobstein said. So, her agency may soon seek to have the recent SJC guidance extend to there as well.
Other counties in Eastern Massachusetts have reported defendants unable to access lawyers but the issue has not risen to the level of an emergency.
Court officials said hearings on releasing defendants will fall into a regular pattern: every Thursday in Boston Municipal Court’s central division for all Boston defendants and every Wednesday in Lowell District Court for defendants in Middlesex County and in Suffolk outside of Boston.
The more consequential hearings on dismissal of cases will begin July 22. There are more than 1,000 defendants who have not had access to a lawyer, and that number is only expected to grow.
If a case is dismissed, any conditions of release meant to ensure public safety are removed as well, including GPS monitoring and orders for a defendant not to contact any alleged victim.
“The court has no hold over you,” said Shira Diner, president of the Massachusetts Association of Criminal Defense Lawyers. “It’s a problem for the victims. It’s a problem for everyone.”
Coffey, the judge in Lowell, faced that dilemma repeatedly last week.
At one point, Coffey weighed Jacobstein’s concerns about representing a man accused of violating probation after facing a charge of assault with a dangerous weapon. If she took the case, she suggested, her workload would be full and she could not handle new ones, including more serious cases.
“We’ve already taken two cases today, that’s all we can do,” she said.
But Assistant District Attorney Amelia Singh argued the man must be held and that means he needs a lawyer.
“We are in crisis, and this is a public safety issue,” she argued.
Coffey ordered the man back to jail, deeming the public defender agency must take his case.
“The Lavallee protocol — it’s a game of tag," Coffey said. “Someone has to be the bad guy, and I’m it.”
Sean Cotter can be reached at sean.cotter@globe.com. Follow him @cotterreporter.