Fair pay for defense counsel isn’t bad for prosecutors – it’s good for justice. A strong District Attorney should speak up on behalf of the defense bar, for the sake of both public safety and substantive fairness.
Some people might be surprised to hear a career prosecutor call for increased pay for defense attorneys. But they shouldn’t be.
Our brothers and sisters in the defense bar are a critical component of our justice system. Simply put, there can be no justice in the American system without competent defense counsel.
This was the holding in one of the most important cases in the history of the United States Supreme Court, Gideon v. Wainwright (1963):
“Lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
Most criminal defendants don’t have enough money to hire private attorneys – about 80% need to rely on the courts to appoint counsel for them. But in Massachusetts today, many defense attorneys are refusing to take on new indigent clients, because the pay scale for appointed counsel – which will rise over the next two years, but only to $85/hour - is still too low to make business sense. Courts can’t force private attorneys to take cases, and when courts can’t find competent criminal defense attorneys to appoint, case law – what is called the “Lavallee Protocol” - says they have to release unrepresented offenders – even dangerous offenders – from custody after seven days, and have to dismiss the cases completely after forty-five days. In the summer of 2025, there were more than 3000 unrepresented criminal defendants in Massachusetts, including 587 in Middlesex County
The public safety implications are not just hypothetical. Already, a man who was released from custody because the court system could not find him a lawyer has been re-arrested for murder after allegedly stabbing a Boston man to death.
But what the defense attorneys are asking for is not unreasonable. How low is $85/hour for an attorney? In Rhode Island, court-appointed attorneys make $112/hour; in New Hampshire, they make $125/hour; and in Maine, they make $150/hour.
In a recent argument before the Supreme Judicial Court, Chief Justice Kimberly Budd framed the problem: “People’s constitutional rights are being violated right now. What are we going to do about that?” The answer is for the Legislature to step up and pay a fair wage for defense counsel. And a District Attorney who is committed to public safety and substantive justice should be an ally in that fight. The incumbent District Attorney has acted like this is somebody else’s problem. It is not.