Dozens of Mass. children 'languishing' with criminal charges and no lawyer
In a packed Boston courtroom, a lone Supreme Judicial Court justice held a hearing Wednesday to address the mounting number of children facing criminal charges without lawyers , probing legal officials on how dozens of children are waiting for weeks without counsel.
"Their case is just languishing and they're suffering some investigative consequences," said (SJC) associate Justice Dalila Wendlandt.
As of this week, there are 44 defendants under the age of 18 in Suffolk County who face criminal charges and have not been appointed a lawyer, assistant Attorney General Marina Pullerits told the courtroom. In addition, there are 14 in Middlesex and seven in Norfolk.
Five children across the counties who were initially arraigned with lawyers in the past two and a half months no longer have legal representation — and on Tuesday, another child appeared in Boston juvenile court without a lawyer and was held without bail, said Committee for Public Counsel Services (CPCS) representative Afton Templen, who said she learned of the situation "as we walked into court."
One of the children in Suffolk County has waited over 55 days for counsel, and at least eight other children in the state whose cases are approaching or already surpassed 45 days without a lawyer. Another has waited for five days.
The statistics come in the face of a constitutional crisis gripping Massachusetts court systems . Since Memorial Day, bar advocate attorneys — private criminal defense lawyers who represent people who cannot afford counsel — have stopped taking on new cases, as they pushed legislators for an hourly rate increase to $100.
This has left over 3,000 adult criminal defendants without a lawyer as of August. Amid this crisis, Wendlandt imposed the Lavallee protocol in Middlesex and Suffolk counties. Under the court order, adult defendants without lawyers must be released from jail after seven days, and their cases dismissed if they are not appointed a lawyer after 45 days.
And despite a bill Gov. Maura Healey signed into law on Tuesday to raise bar advocates' hourly rates by $20 over two years, the bar advocates say they're not going to return for new cases, saying they played no role in negotiating and that neighboring states like New Hampshire and Maine have lower costs of living with wages well over $100 an hour.
Now, Wendlandt is tasked with deciding whether that court order she issued in July for adult cases should apply to the juvenile courts.
Juvenile courts systems differ from the adult courts in several ways. Most significantly, children arrested and charged with crimes are given opportunities to be in diversion programs in Massachusetts at any point during pre-trial proceedings.
These diversions, like restorative justice programs, mental health courts and other community-based interventions, can allow children to avoid a formal court record if they are successfully diverted prior to their arraignment, or when the district attorney formally charges them with a crime.
When a child is arrested, they are generally released to the care of a parent, guardian or Department of Children and Families (DCF) representative with the guardian's "written promise ... to be responsible for the presence of the child in court at the time and place when the child is ordered to appear," unless the arresting officer or court warrant requests the child remain in custody, according to state law .
Wendlandt heard from both Pullerits and Templen in the courtroom on Wednesday. Templen explained the need for immediate action by way of Lavallee protocol implementation — but Pullerits argued that juvenile courts operate with a need for "flexibility," unlike adult courts.
"If a case has been pending for 60 days ... the work that defense counsel would do out of the gate — investigation, the witness conversations — that's not happening," Templen said.
"How is that case going to be defended when it's been languishing for ... however many days?" These delays, Templen said, causes irreparable harm to children's futures, while Lavallee would help protect them from a system that's failed to give timely, required representation.
She argued that when a case sits for months without counsel, the child loses out on critical investigative work, potential diversion opportunities and that they could be subject to further immediate and long-term consequences — from prolonged school suspensions to the psychological burden of an unresolved legal situation.
But, Pullerits argued, a "one size fits all" protocol like Lavallee could harm how the juvenile justice system operates with a nuanced and flexible approach.
"Cutting an artificial bright-line rule on when a case gets dismissed will create a scramble in the juvenile courts," Pullerits argued.
Pullerits pointed to the numbers — which show that no children have been arraigned without an attorney, though their cases have been delayed — to say that the situation "has not reached anything close to the point of constitutional crisis" for a protocol like Lavallee to be instituted. Additionally, dismissing cases would "undercut" juvenile courts' purpose of rehabilitation, she said.
Wendlandt also brought up the $40 million allocation that will come to CPCS through Gov. Maura Healey's signing of a bill this week to increase bar advocate attorney wages and prevent another work stoppage.
Templen said it's "too soon" to tell if the money will be for all CPCS divisions, or just those who represent adults — and even still, that the agency won't be able to hire a sufficient amount of lawyers in Suffolk County quickly enough to mitigate the crisis.
Wendlandt asked the officials to begin tracking when children's cases continue because a lawyer is not available. No decision was made on the institution of the Lavallee protocol for juvenile courts, and Wendlandt did not yet schedule another court date for further hearings.
Lavallee Protocol
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