More than 100 criminal cases in Boston, including with serious charges such as domestic violence, have been thrown out due to a monthslong shortage of public defenders on strike over low wages.
The dismissals, in addition to a mass release of inmates facing trial, precipitate from a compounding crisis of overworked and underpaid defense attorneys, which is not just consuming Massachusetts.
Last week, Judge Tracy-Lee Lyons, chief justice of Boston Municipal Court, dismissed 122 cases against indigent defendants due to the public defender strike in Massachusetts that is now entering its third month.
Pursuant to a courtroom rule called the “Lavallee protocol,” Massachusetts judges are compelled to free destitute defendants from jail who were not granted a defense lawyer within seven days of pretrial detention. If delays persist, per the protocol, the court must then dismiss the cases of those without legal counsel for 45 days.
The Lavallee protocol is named after a 2004 case concerning a similar scarcity of available attorneys willing to accept assignments involving indigent clients. Brought before the Massachusetts Supreme Judicial Court, the lawsuit cited low lawyer-compensation rates appropriated by the annual state budget as a lack of financial incentive for attorneys to take on these cases. On account of “chronic underfunding,” the court concluded that inadequate compensation of counsel effectively deprives the criminally accused of the constitutional right to legal representation.
In Massachusetts, full-time public defenders, who are salaried staff, typically cover about 20% of the state’s caseload while court-appointed private attorneys, known as bar advocates, handle the remaining majority of cases on “duty days,” or time voluntarily spent representing the indigent outside of day-to-day private practice work.
Bar advocates in Massachusetts are among the lowest paid in New England, generally receiving a rate of $65 per hour compared to nearly double that or more in surrounding states, such as Rhode Island ($112 hourly), New Hampshire ($125 hourly), and Maine ($150 hourly). Private practice work, in comparison, can bring home $300 an hour in earnings.
In protest of the pay disparity, hundreds of public defenders coordinated a work stoppage at the end of May to pressure the Democratic-majority Massachusetts legislature to increase the hourly rate for bar advocates.
“The consensus is we’re not going to do this anymore,” defense attorney Jennifer O’Brien, of O’Brien Law Offices, said while rallying at the Massachusetts State House. “Nobody wants to get out of law school with all that debt and make $65 an hour.”
A domino effect of underfunded defense attorneys
Consequently, the pay dispute led to at least 1,300 indigent defendants lacking a defense lawyer, as of late June, causing a “catastrophic logjam.” That number has since skyrocketed to 2,700 clients without a court-provided attorney. In early July, in light of the seven-day limit, the court was required to release some of the defendants from lock-up, including suspects charged with drug distribution and an armed robbery suspect accused of stabbing a coworker.
“I’m really grateful, because without the lawyers, I’d probably still be in there, honestly,” one woman, who was arrested on a drug charge and subsequently freed, told Boston 25 News.
Many more could qualify for release under the Lavallee protocol.
CRIMINAL DEFENDANTS RELEASED FROM BOSTON JAIL DUE TO DEFENSE LAWYER WORK STOPPAGE
Judge Lyons’s invoking Lavallee for dismissals marked the first time it was used to toss out cases outright.
The dropped charges ranged from traffic violations to assault. Most involved minor crimes, such as shoplifting and drug possession. Others were of a more violent nature.
One of the suspects allegedly punched his pregnant girlfriend in the stomach, according to the Associated Press. In an unrelated case, a man was accused of trying to strangle the mother of his child. Another defendant allegedly attacked a police officer and threatened to shoot him.
The dismissals, however, were “without prejudice,” meaning charges can be refiled at a later date.
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Lyons made the unprecedented move on July 22, dropping each case one by one in a dismissal spree, over the objections of Suffolk County prosecutors.
“The case dismissals today, with many more expected in coming days and weeks, present a clear and continuing threat to public safety,” a spokesperson for the Suffolk County District Attorney’s Office said in a statement promising to re-prosecute all of the cases.
The state’s response to a government-made problem
Democratic Massachusetts Gov. Maura Healey, meanwhile, urged the defense attorneys to get back to work, so defendants can receive the representation they are entitled to until Massachusetts lawmakers reach a resolution.
“I know the parties are talking. They have got to find a way to work this out,” Healey told reporters. “We need lawyers in court … and certainly they need to be paid fairly.”
The chairman of the state Senate Ways and Means Committee said he’s willing to work with the lawyers, but said that the work stoppage “serves only to harm victims, defendants, and the overall justice system.”
Despite the worker protest and ensuing attorney shortages, the $60.9 billion fiscal 2026 budget Healy signed on July 4 does not include any increases in income for public defenders. The state’s spending plan, however, earmarks $6.2 million for environmental justice and another $5 million “to ensure continuity of abortion[s] and abortion-related care in the event of a loss of federal funding.”
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The Committee for Public Counsel Services, or CPCS, the Massachusetts agency overseeing the state’s public defender system, has proposed a series of pay increases depending on court level and case work, such as juvenile representation, murder defense, and appeals.
Legislation filed in January would bump up the wages in line with the committee’s requests. Bill H.1876, however, has halted in the Joint Committee on the Judiciary since February.
Public defender systems beleaguered nationwide
Paying public defenders fairly is a problem beyond Massachusetts, as other states are also struggling to fund their public defender systems properly. Public defense advocates say adequate pay is paramount for attracting, recruiting, and retaining qualified talent in this strained sector of the legal industry.
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A funding crisis is also arising at the federal level, prompting concerns in the federal judiciary that private court-assigned lawyers, or panel attorneys, could decline cases and leave defendants, even those on death row, without a legal defense.
The continuing resolution to fund the federal government for fiscal 2025, which Congress passed in March, froze all judicial branch funding at the fiscal 2024 level, resulting in panel attorney funding running out unusually early. To cover the funding gap, the judiciary is calling for $116 million in supplemental funding.
Panel attorneys, private lawyers participating in the assigned counsel program, are paid from congressionally appropriated funds and often at a rate significantly lower than market value, including in capital cases. In the past, payments to panel attorneys were suspended during previous congressional budget crises, but rarely for more than a few weeks.
Of the 12,000 panel attorneys throughout the country accepting federal assignments annually, approximately 85% of them work for small firms or are solo practitioners who cannot afford payment deferrals. According to the U.S. Courts administrative office, in spite of the funding freeze, considerable volumes of work have already been performed by panel attorneys.
The work can’t simply be turned over to federal defenders, the judiciary says, because such offices are already severely understaffed, working overtime, and facing hiring freezes because of tight budgets.
In a July 25 memo on fiscal 2026 judiciary appropriations, projections estimate that over 600 federal defender positions would be eliminated or payments to panel attorneys deferred for more than two months, the longest deferral in the history of the program, under the House budgetary proposal.