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JOSH KRUMHOLZ AND WARREN TOLMAN

No justice for Mikaela

ONE YEAR ago, a beautiful little 2-year-old girl was taken from her home by the Department of Social Services and placed in foster care. The department filed a petition to terminate her mother's rights as a parent. Because of the stakes involved, the court was required to hold a hearing within 72 hours. At that hearing, decisions would be made that could affect the rest of Mikaela's life.

The law requires that Mikaela be assigned a lawyer to protect her interests at that hearing. Mikaela's court-appointed lawyer, however, was overwhelmed with other work. She withdrew from the case, and the hearing never took place. One year later, Mikaela remained in foster care, her future still in limbo, much damage already done.

As lawyers in Massachusetts, we have become all too familiar with scenarios like these. Time after time, children, mentally ill patients, and indigent criminal defendants have been left with no lawyer or, perhaps worse, with a lawyer who has neither the time nor the resources to perform the job properly. Those who most need legal counsel are often those who can least afford it, and our system is stretched so thin that defendants remain behind bars or in institutions until counsel can finally be appointed for them. The result is a system that deprives our citizens of basic constitutional rights.

One of the most fundamental of individual rights is the right to counsel. The constitutional right to a lawyer, even if you can not afford one, is a basic underpinning of our modern system of justice. But that right has been threatened and eroded by years of neglect. The pay scale for court-appointed lawyers has become so outdated that access to these lawyers is threatened.

Action is desperately needed, as evidenced by the fact that Massachusetts pays its court-appointed counsel the second-lowest rates of any state in the country.

Our Constitution is designed to protect the health and safety of our citizens. Our Constitution, however, cannot work in a vacuum. We should not rank 49th in pay to nurses or police officers. And no one should be surprised that when you fail to pay court-appointed lawyers enough to keep up with inflation, pretty soon even the most vulnerable members of society will be denied counsel. As Mikaela's case demonstrates, even lawyers who are on the job are stretched so thin that they often cannot provide meaningful assistance to their clients.

A recent survey found that almost two out of three court-appointed lawyers do not interview their client promptly and extensively in private. The same number say they are not able to investigate their cases fully enough, even though they generally do so when serving paying clients. And two out of five say they are not paid for enough hours to file the same pretrial motions for public clients as they do for private clients.

Last summer the Legislature created a commission to study the current system and recommend changes to it. We applaud that decision. We hope that the commission, Legislature, governor, and Supreme Judicial Court understand the importance and complexity of the task before them.

To do their job, the commission and the Commonwealth must balance the need for a thoughtful and lasting constitutional solution with the need for quick action. The lives of many of this state's most vulnerable citizens depend upon their work.

Acting on behalf of all of the children, poor, and mentally ill who are entitled to an attorney, lawyers filed a statewide class action suit last June. Through that case, Arianna S. v. the Commonwealth, our goal is to make sure that each eligible citizen gets not just a lawyer but one with the skills and resources to do the job properly.

An effective and constitutional solution requires the commitment and cooperation of all three branches of government.

There will be costs involved and the effort will be considerable. But the cost of depriving people of their liberty is far greater.

The judicial system cannot protect the health and safety of Mikaela if she spends her formative years in a foster home waiting for a lawyer who will accept some of the lowest pay in the nation. While a bare minimum of legal service is still available for many, it is clear that justice discounted is justice denied.

Fifty years ago, Massachusetts played a leading role in Gideon v. Wainwright, the case that first gave criminal defendants the right to counsel. The Commonwealth did the right thing then, and must do the right thing now. The constitutional rights of our most at-risk citizens -- along with the rest of the state -- depend on it.

Josh Krumholz and Warren Tolman are counsel for the plaintiffs in Arianna S. v. the Commonwealth, a case challenging the constitutionality of the Massachusetts indigent defense system.  

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