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The COMMONWEALTH of Massachusetts pays more than $80 million a year for lawyers for criminal defendants — without always checking whether they can afford to hire their own representation. That was the conclusion of a state auditor’s report late last year, and reinforced last month by Supreme Judicial Court decisions which gave the state powerful new ammunition to curb costs. The justices declared that in addition to considering a defendant’s own finances, a judge can take into account the funds available to his or her spouse, parent, or, under certain circumstances, cohabiting partner. Now, the state’s judicial system, working with the governor and Legislature, should do its part to rein in what seems like a substantial waste of money.

Access to a court-appointed defender is a bulwark of fairness and due process. But there is nothing fair about allowing funds earmarked for the legal needs of the truly poor to be diverted for the benefit of defendants who can contribute to their own defense, but choose not to.


Too often, little effort has gone into verifying the finances of criminal defendants claiming to be indigent. In Massachusetts, the task of vetting litigants’ financial condition has fallen to the Probation Department, but the investigation by State Auditor Suzanne Bump’s office confirmed what any courthouse regular already knew: Defendants routinely get a court-appointed lawyer just by asking for one. “Millions were being spent on public legal services,” a spokesman for the state auditor told the Globe, “without the Probation Department collecting or verifying the documentation needed to determine if those services were actually deserved.”

In one of the cases decided by the SJC last month, the president of a home-care firm was indicted on 93 counts of failing to pay her workers. Diane Porter pleaded indigency and was supplied with a court-appointed lawyer. But it turned out that she and her husband owned three pieces of real estate and had a joint income of more than $62,000 a year. Porter insisted nonetheless that she couldn’t pay for legal counsel, but offered no serious evidence that that was true.


Not good enough, the SJC ruled. A defendant claiming indigency should be prepared to prove it. After all, observed the justices, defendants are better able to detail their financial condition than a judge or a Probation Department clerk. Moreover, defendants are not entitled to a lawyer at taxpayer expense when it’s reasonable to expect another person to help pay their bills. In Porter’s case, her husband’s resources could fairly be taken into account. In a separate case, it was the earnings of the defendant’s girlfriend, who was the couple’s primary breadwinner, and his mother, in whose home he was living.

Court-appointed defense lawyers play a vital role in our criminal justice system. Without them, thousands of destitute defendants, often mentally ill or otherwise gravely challenged, would be denied due process of law. Nothing in the SJC’s opinions is intended to impede the access of the neediest litigants to legal counsel. On the contrary: The high court’s overdue crackdown should serve to keep non-indigent criminal defendants from claiming public subsidies they have no right to, and thereby siphoning resources from those who genuinely have no other option.