MICHEL MARTIN, HOST:
In this country, if you're charged with a serious crime, you have the right to an attorney, whether or not you can afford one. But each state has its own system for providing that kind of counsel, and many of those systems are struggling. In Massachusetts, when public defenders are overwhelmed, the courts can ask private lawyers to step in. But increasingly, they are saying no, causing cases to be dismissed. Deborah Becker with WBUR has this report.
DEBORAH BECKER, BYLINE: During a recent hearing in Boston Municipal Court, Judge Tracy-Lee Lyons dismissed several cases because the state public defender agency - known as the Committee for Public Counsel Services, or CPCS - couldn't find attorneys.
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TRACY-LEE LYONS: The court finds that CPCS has made a good-faith effort to secure representation but has been unable to do so. This case shall be dismissed without prejudice.
BECKER: Without prejudice means prosecutors can refile the charges. Some of the ones at this hearing included assault and battery and drug trafficking. Prosecutor Marc Tohme told the judge the dismissals are a threat to public safety.
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MARC TOHME: I understand that no counsel has been found. This is a very upsetting and frustrating situation.
BECKER: The Massachusetts Supreme Court ruled last month that judges must dismiss charges if a lawyer isn't appointed within 45 days. If a person in custody doesn't have counsel within seven days, they're required to be released. Private attorneys who serve as public defenders started refusing new cases in May. Since then, dozens of people have been let out of jail. Jen O'Brien is an attorney leading the push to increase pay for Massachusetts public defenders, which starts at $65 an hour.
JEN O'BRIEN: The state certainly prosecutes enough people. They can't just pay for the prosecution side of it and then underfund the defense side of it.
BECKER: Other states are facing a similar crisis, according to Aditi Goel with the Sixth Amendment Center, a nonprofit that tracks public defense. Although states are required to provide attorneys, she says each state does it differently.
ADITI GOEL: America's dirty little secret is that there are thousands of people who go to jail without ever speaking to a lawyer.
BECKER: In Oregon, there's pending litigation over the thousands of people with no legal representation. Jennifer Nash is chair of the Oregon Public Defense Commission.
JENNIFER NASH: There's problems all over the country, and they're all the same problem. And that is that it's extremely difficult to recruit and retain public defense lawyers. The pay is too low and the caseload is too high, and the work is very difficult.
BECKER: Most states that run a public defender system boost the ranks with private attorneys. Increasingly, those attorneys are opting out. Maine is another place where public defenders are under strain. And in New York City, unionized public defenders averted a strike after reaching a tentative deal last month over better pay and smaller caseloads. Attorneys say there are several reasons this issue is coming to a head now. One is more prosecutions, stemming from tough-on-crime policies. There's also a backlog of cases dating back to the pandemic. Many lawyers are still paying off law school student debt and grappling with a higher cost of living. Massachusetts attorney Lisa Newman Polk stopped taking some public defender cases eight years ago.
LISA NEWMAN-POLK: The rate is just so abysmal. And I think all of us know that just getting somebody to come to our house to fix something often costs substantially more than $65 an hour.
BECKER: Massachusetts lawmakers last week offered the attorneys a $20-an-hour raise over two years. But several lawyers say it's not enough.
For NPR News, I'm Deborah Becker in Boston.
(SOUNDBITE OF SAM PREKOP'S "A CLOUD TO THE BACK") Transcript provided by NPR, Copyright NPR.
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