The HPAO Bureau report found flaws in Massachusetts' system for verifying indigent status and providing public defense counsel. Key findings include: lack of proper verification tools like interagency agreements; overcounting of verifications done; uncertain cost savings estimates; and disparate financial reporting that makes auditing difficult. The report recommends implementing pilot programs to improve efficiencies while upholding constitutional rights to representation.

1. REVIEW OF THE INDIGENT DEFENSE COUNSEL PROGRAM:

2. REVIEW OF THE INDIGENT DEFENSE COUNSEL PROGRAM:

3. “LOSS OF LIBERTY” WHY STATE PAYS
INDIGENT DEFENSE COUNSEL
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGE: 27
Massachusetts Supreme Judicial Court (1959)
and
United States Supreme Court
in Gideon versus Wainwright (1963)
Both decisions ordered the provision of publicly paid defense counsel to
impoverished persons as a constitutional protection afforded to both state and
federal criminal defendants who are FACED WITH THE
POTENTIAL PENALTY OF JAIL UPON CONVICTION IN
A CRIMINAL CASE.

4. MASSACHUSETTS CURRENTLY SPENDS $200 MILLION
ON INDIGENT DEFENSE COUNSEL

5. THE MASSACHUSETTS HOUSE OF REPRESENTATIVES RECOGNIZES ITS
DUTY TO PROVIDE CONSTITUTIONALLY APPROPRIATE EFFICIENCIES
To operate more efficiently and to continue to
guarantee all persons’ constitutional rights to
representation, the HPAO Committee
recommends changes to the current state law
including a change of presumption to MGL c
277 s 70C , and a combination of civil
infraction reform, and continued pilot
programs and diversion programs.

6. 3 HPAO COMMITTEE RECOMMENDATIONS
First: universally IMPLEMENT the pilot system that the Probation
Department began in four courts; Also, the Committee proposes
statutory changes included in in “Appendix G”.
Second: once the Civil Infraction Commission issues a report, the
legislature may IMPLEMENT their recommendations;
Third: AMEND the law to eliminate court-appointed attorneys for
those misdemeanors cases when no incarceration will ever be
sought by prosecution or imposed by a court and cut back on
defendants eligible for indigent defense due to “loss of liberty.”

7. CHANGE THE PRESUMPTION

Based upon the research that has been collected on the most
common misdemeanor offenses in which jail time is rarely
sought, the Committee’s recommends that the General Laws be
amended to change the presumption on forty-one (41)
misdemeanor offenses so it is presumed that jail time is not
being sought by the Commonwealth and therefore there is no
requirement for publicly paid counsel.

In FY11 alone, had these forty-one (41) types of misdemeanors
cases not been appointed public counsel, the Commonwealth
could have saved $3,642,254.00 in single-charge misdemeanor
cases.

8. AMENDMENT FOR “CHANGE THE PRESUMPTION”
TO MGL chapter 211D, section 2B




Mr. Linsky of Natick moves to amend the bill by inserting after section XX the
following new section:SECTION YY. Chapter 211D of General Laws is hereby amended by striking
section 2B and inserting …A criminal defendant charged only with
violations of: ( list of misdemeanor infractions contained in Linsky
amendment)…
…shall not be appointed counsel unless said offense requires a mandatory
period of incarceration
OR the Commonwealth notifies the court in writing that it will recommend
to the court that the defendant’s sentence, if convicted, will include a period of
incarceration. ..and the court may then appoint counsel, and on the request such
counsel shall be entitled to a continuance to conduct any necessary discovery and to
prepare adequately for trial.

9. WHAT DID HPAO BUREAU FIND ?

10. WHAT DID HPAO FIND?

Not extensive use of decriminalization motion (MGL c 277 s
70 C);

Evidence of Subjective Indigency assessment;

Lack of statutorily prescribed verification tools (ISAs);

Disparate financial reporting on indigency fees, including
instances of negative revenue recorded;

Confusing statistics, tabulations and descriptions.

11. WHAT IS THE FREQUENCY OF USE OF
MGL C 277 S 70C (MISDEMEANOR DECRIMINALIZATION)?
For all District Court charges
MGL c 277 s 70C
NOT EXTENSIVELY USED
In last Five (5) years
(2007-2011)

12. TO WHAT EXTENT IS MGL c 277 s 70 C USED FOR
DISORDERLY CONDUCT AND DISTURBING PEACE CHARGES?
HPAO requested
AOTC statistics
on the use of
MGL c 277 s 70C
for statewide arraignments of
For common single misdemeanor charges of
DISORDERLY CONDUCT
and
DISTURBING THE PEACE

13. TO HPAO FIRST REQUEST, AOTC PROVIDED A PRELIMINARY
LIST OF CHARGES AMENDED TO CIVIL COMPLAINTS IN 2010

14. WHAT EXTENT MGL c 277 s 70 C USED
FOR DISORDERLY CONDUCT AND DISTURBING PEACE?
For this analysis, the AOTC reported:
1,280
dispositions for DISORDERLY CONDUCT
654 dispositions for DISTURBING THE PEACE
During the calendar years 2008 through 2010
1,934 total criminal “disorderly/disturbing” misdemeanor arraignments.
Contrasted against
49,495 arraignments in the District Court Department and Boston Municipal
Court Department for disturbing / disorderly
MGL c277 s70C used in ONLY 4 PERCENT of arraignments
See Table 2 for 31/2 years of decriminalization against total arraignments;
See Table 3 shows the county and court divisions for the 1,934 charges.
Tables in following slides…

15. 49,495 DISTURBING/DISORDERLY ARRAIGNMENTS;
BUT ONLY 1,934 USES OF MGL c 277s70C – ABOUT 4 PERCENT OF TOTAL
During the period calendar year 2008
through 2010 there were 49,495
arraignments in the District Court
Department and Boston Municipal
Court Department for disturbing /
disorderly (see Table 2).

16. USE OF THE DECRIMINALIZATION MOTION OF MGL C. 277 S. 70C IS NOT
EXTENSIVE IN COMMON DISTURBING/DISORDERLY CHARGE

17. OTHER CRIMINAL COURT DIVERSIONS USED BY PROSECUTORS
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 20 - 25
 There are alternatives to decriminalization and individual District
Attorneys noted diversion programs in their offices, including:
 juvenile and adult diversion programs;
 drug diversion;
 diversion of juveniles who previously might have been charged with
prostitution but whom we treat as victims;
 Bad Check Restitution program;
 Before arraignment of a defendant … a police officer has statutory ability
to both issue a citation and offer an offender the opportunity for a hearing
before a court clerk…“notwithstanding probable cause, … continue the
hearing … effectively placing the offender on an informal probation, after
which the case is dismissed.”

18. PROBATION OFFICES WERE ALLOWED “DISCRETION”
REGARDING INDIGENCY VERIFICATION

19. PROBATION OFFICES WERE ALLOWED “DISCRETION”
REGARDING INDIGENCY VERIFICATION

20. VERIFYING OFFENDERS EARNINGS AND ASSETS

INDIGENCY VERIFICATION HAS BEEN REQUIRED FOR YEARS…

The verification of income and assets conducted by the Office of the Commissioner of
Probation according to MGL chapter 211D section 2

Also, MGL c 276 s 99E specifies the means of income and assets verification :
Commissioner of Probation shall enter into interagency service agreement
with
MASSACHUSETTS DEPARTMENT OF REVENUE (DOR);
DEPARTMENT OF TRANSITIONAL ASSISTANCE (DTA);
DEPARTMENT OF MEDICAL ASSISTANCE (DMA); AND
REGISTRY OF MOTOR VEHICLES (RMV)






21. VERIFICATION OF INDIGENT STATUS LACKED PROPER TOOLS
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 27, 28, 31- 34, 46 - 51
 Only DOR maintained an ISA, or interagency service
agreement with Probation and DOR was careful to strictly limit
their role in verification;
 DTA, RMV, Medicaid Office, like DOR were also careful to
maintain their distance from indigent verification;
 A 2004 memo from a former Probation Commissioner that
allowed a subjective indigent status assessment in each court;

22. VERIFICATION OF INDIGENT STATUS LACKED PROPER TOOLS
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 27, 28, 31- 34, 46 - 51
The Department of Transitional Assistance (DTA)
…does not have any interagency service agreements
In its response to the HPAO Bureau, and writing at the request of the DTA Commissioner, the
Acting General Counsel of the Department of Transitional Assistance stated that:
“…to the best of my knowledge, the Department of Transitional
Assistance does not have any interagency service agreements
with the District Court of Massachusetts, the Boston Municipal
Court Department, the Massachusetts Office of the
Commissioner of Probation or with the Massachusetts Trial
Court. Nor does the Department have a process for verifying
“indigency” beyond the various eligibility requirements of its
public assistance programs.”

23. VERIFICATION OF INDIGENT STATUS LACKED PROPER TOOLS
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 27, 28, 31- 34, 46 - 51
Department of Medical Assistance (DMA)
…cannot provide you with this ISA or with information …
The Director of the Office of Medicaid, Executive Office of Health and
Human Services, responded to the HPAO Bureau and indicated:
“Neither the Commissioner of Probation nor the Massachusetts Trial Court
has entered into such an ISA [Interagency Service Agreement] with the
Office of Medicaid related to indigency verification…cannot provide you with
this ISA or with information regarding statistics or an ‘indigency verification
process for the purposes of such an ISA.”

24. VERIFICATION OF INDIGENT STATUS LACKED PROPER TOOLS
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 27, 28, 31- 34, 46 - 51
Registry of Motor Vehicles (RMV)
“…not aware of any such ISA [Interagency Service Agreement..
The Registrar, of the state Registry of Motor Vehicles, advised the HPAO Bureau
that she was:
“not aware of any such ISA [Interagency Service Agreement]… between the
Massachusetts Department of Transportation, Registry of Motor Vehicles
Division and the Massachusetts Commissioner of Probation or with the
Massachusetts Trial Court that are used to determine the ‘indigency’ of
recipients of state paid defense counsel.” The Registrar of Motor Vehicles
further noted that she had “spoken to the MassDOT [state Department of
Transportation] Controller and she is not aware of any ISA between the
Registry of Motor Vehicles and the Massachusetts Commissioner of
Probation or the Massachusetts Trial Courts”.

25. ONLY THE DEPARTMENT OF REVENUE HAD AN IN-FORCE AGREEMENT
WITH THE COMMISSIONER OF PROBATION TO CHECK FOR INDIGENCY VERIFICATION
Department of Revenue (DOR)
“DOR does not conduct reviews of verifications of the information provided…”
“DOR’s responsibility is limited solely to matching wage reporting files to
information provided by AOTC regarding individuals that have claimed
indigency….DOR does not conduct reviews of verifications of the information
provided…”
The only agency that responded affirmatively to the existence of an
interagency service agreement to verify indigent status for a person applying
for a court appointed and state paid defense counsel …a copy of the
existing Interagency Service Agreement (ISA) “established between DOR and
the Administrative Office of the Trial Court (AOTC) and the Office of the
Commissioner of Probation.”

26. ALSO…MASSIVE OVER-COUNTING OF DEPARTMENT OF REVENUE PROCESSED
INDIGENCY VERIFICATIONS
THERE HAS BEEN “MASSIVE OVER-COUNTING” OF INDIGENT VERIFICATIONS
DOR receives and processes approximately five (5) electronic [batch]
transmissions per month from AOTC, the DOR letter to HPAO Bureau stated.
The Office of the Commissioner of Probation, after its own inquiry, later
stated that in fact the verification process was flawed particularly the
tabulation of verifications. The HPAO Bureau was advised that each Sunday
evening when the Office of the Commissioner of Probation submitted its
verifications to DOR, that submission contained all of the “open” cases in
Probation. Thus all of Probations’ “open cases” were re- submitted every
Sunday night. These “open” cases were not distinguished from that weeks’
indigency verifications. Consequently, there is no way to accurately tabulate
verifications submitted by Probation to DOR AND THERE HAS BEEN
“MASSIVE OVER-COUNTING” OF INDIGENT VERIFICATIONS.

27. ALTHOUGH FLAWED; HIGH MISREPRESENTATION ‘YIELD’ NOT EXPECTED
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES 35-36
In a quarterly assessment of statistics for July through
September 2011 provided to the HPAO Bureau, the tally for
total persons “determined indigent” in District Court was
18,915 individuals. Of that number, 194 individuals were
found to have misrepresented their financial status. THAT
IS ONE (1) PERCENT OF THE APPLICANTS AT DISTRICT
COURT.

28. PROBATION COMMISSIONER PILOT: INDIGENT VERIFICATION STATISTICS FLAWED; HOWEVER…
HIGH MISREPRESENTATION ‘YIELD’ NOT EXPECTED
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES 35-37
In a quarterly assessment of statistics for July through
September 2011 provided to the HPAO Bureau, the tally for
total persons “determined indigent” in District Court was
18,915 individuals. Of that number, 194 individuals were
found to have misrepresented their financial status. That is
one (1) percent of the applicants at District Court.

29. INDIGENT VERIFICATION STATISTICS FLAWED; HOWEVER…
HIGH MISREPRESENTATION ‘YIELD’ NOT EXPECTED
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES 35-37

30. “VERIFICATION “ COST SAVINGS UNCERTAIN AND UNKNOWN;
FISCAL AFFAIRS DIVISION ASSUMPTIONS DOUBTFUL
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 37, 39, 42 – 45
FAD Claim:
…15 percent CPCS applicants
potentially ineligible…
Administration and Finance (ANF) Secretariat …
claimed shifting indigency verification to Dept of
Transitional Assistance, approximately 15
percent of CPCS applicants that would
otherwise be determined to be eligible…would
be found ineligible…ANF projected up to $25
million in annualized savings from ineligibility.
IN FACT: the DTA [in a spreadsheet
provided to HPAO Bureau] demonstrated
that denials for eligibility based on
“earnings and assets” was only 8.17% of
total applicants for TAFDC (Transitional
Aid to Families with Dependent Children)
and 3.02% at EAEDC program (Emergency
Aid to Elders, Disabled and Children)


Based on the Department of Transitional Assistance
(DTA) estimate the “yield” of misrepresentation is
NOT 15 PERCENT BUT JUST OVER
EIGHT (8) PERCENT BASED UPON AN
“EARNINGS AND ASSETS” CRITERION.
 IN ADDITION, FAD does not demonstrate a
similarity between DTA applicants and
indigent defense counsel applicants;
 Current Office of the Commissioner of
Probation “four court study” is demonstrating
a misrepresentation of indigent status of
JUST GREATER THAN 1 PERCENT.

31. COST SAVINGS UNCERTAIN AND UNKNOWN;
DOCUMENT PRODUCED BY MASS. DEPARTMENT OF TRANSITIONAL ASSISTANCE AT HPAO REQUEST
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 37, 39, 42 – 45

32. Review of the Indigent Defense Counsel Program:
AOTC Revenue Reconciliation Reports
APPENDIX A

33. DISPARITY OF DATA AND LACK OF DATA MAKE AUDIT DIFFICULT TO
IMPOSSIBLE
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 27, 28, 31- 34, 46 - 51

Revenue reconciliation for AOTC reported instances of
zero and negative revenue collection for indigent defense
counsel fee;

No apparent collection effort that in any way approaches
the full $150 for indigent defense counsel base rate;

Estimates of actual indigent collections based on a fee of
$150 contrast sharply with reports of actual collections of
fees in the $80-$90 range. If accurate this optimistic
outlook and actual revenue collected disparity is
guaranteed to produce revenue shortfalls;

34. REVENUE RECONCILIATION REPORTS INDICATE
DISPROPORTIONATE; INDIGENT FEE COLLECTION ($150):
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 46
Revenue Reconciliation Reports time period (FY 2009
through FY 2011) three year average for District and
BMC Courts:
Court A13
Per capital income: $31,314
Three year average number of 601
criminal cases reported a total “$150
fee” revenue of
$20,580.00
Court A19
Per capita income: $17,492
Three year average number of 7,004
criminal cases reported a total “$150
fee” revenue of
$8,070.00
Revenue Reconciliation Reports time period (FY 2009
through FY 2011) three year average for District
and BMC Courts:
Court A11
Per capita income: $ 15,602.
Three year average number of 9,434 criminal
cases
Reported a total “$150 fee” revenue of
No Reported Revenue
Court, A3
Per capital income: not available
Three year average number of 12,360 criminal
cases
Reported a total “$150 fee” revenue of
Negative Revenue ($-1,750)

36. Careful Comparisons
Needed
As the
Disparity of Data
and the
Lack of Data
Make
Audit Difficult
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 17

37. DISPARITY OF DATA AND LACK OF DATA
MAKE AUDIT DIFFICULT TO IMPOSSIBLE
FOR FURTHER INFORMATION SEE HPAO BUREAU REPORT PAGES: 8, 17, 25

The Bureau found that the various sources of information available to it in this
audit were often conflicting and made the audit diffcult; FOR EXAMPLE:

The statistics on criminal case filings are compiled by FISCAL
YEAR, while the statistics provided for the use of the
decriminalization motion and the specific tally of the use of the
decriminalization motion for disorderly conduct and
disturbing the peace are provided for CALENDAR years.

The calendar year is January to December, while the fiscal year (for the
Commonwealth of Massachusetts) is 1 July through 30 June.

Similar instances of differing tabulation methods were encountered throughout the audit
rendering strict comparisons and analysis very difficult

38. THANK YOU