MA Senate Committee, Trial Court reports flag right to counsel issues in fees/fines cases

11/17/2016, Report, Incarceration for Fees/Fines (incomplete)

A November 2016 report by the Massachusetts Senate Post Audit and Oversight Committee, Fine Time Massachusetts: Judges, Poor People, and Debtors’ Prison in the 21st Centuryobserves that 


In only 46% of our sample of 105 fine time cases did a defendant have what appeared to be the conventional assistance of an attorney. Even assuming that some number of additional defendants waived counsel while some others received a few minutes of advocacy from a duty lawyer who happened to be in the courthouse, it appears that Massachusetts trial court judges follow no consistent policy with respect to offering defendants legal representation in the face of possible fine time.


It then says this is puzzling in the wake of a 1990 case from the Massachusetts Supreme Judicial Court called Commonwealth v. Gomes that relied on Argersinger (the U.S. Supreme Court case about the right to counsel in criminal misdemeanor cases) to find a right to counsel prior to incarceration for failing to pay a fine.  The report notes that Argersinger dealt with a situation quite different from a fine-based incarceration, but that "these differences did not stop the SJC from invoking Argersinger to support a finding that Gomes had a constitutional right to counsel.”  The report then acknowledges the confusion of the law around the right to counsel in fees/fines cases, and urges the legislature to take action:


Ideally, a federal or state appellate court will resolve the various uncertainties surrounding the right to counsel in situations involving monetary exactions. But such a court needs an appropriate case to review. This could be a long time coming. The hearing in which a trial judge metes out fine time may last no more than a minute or two, during which the defendant may well be without legal counsel (thus raising the constitutional issue). No separate date is set for sentencing and no stays are issued pending appeal. The defendant goes directly from courtroom to jail, still without a lawyer to resist the loss of liberty before it’s all lost. Fast- moving situations like these are sources of frustration to the legal profession, in that a constitutional violation may arise that is capable of repetition even as it evades review.  Members of the Legislature operate under no such constraints. We may have constituents who should be formally evaluated for indigency before coming before the court on financial obligations and who, if found indigent, should be offered counsel. If we’re concerned about this, we can address the situation through legislation.

Also in November 2016, a MA Trial Court Fees and Fines Working Group put out a report "recommends a policy be adopted requiring judges to appoint counsel to represent an indigent person in a proceeding for the enforcement of fees and fines related to criminal cases whenever incarceration is a possibility."