Between May 2025 and February 2026, Massachusetts judges dismissed at least 1,687 criminal cases and released 198 people from custody. Not because the charges were weak. Not because evidence was suppressed. Because nobody would take the cases.
The lawyers who defend people who cannot afford a lawyer stopped accepting new assignments over what the state pays them. The courts had no constitutional way to keep the cases alive, so they let them go. It is the largest collapse of indigent defense in the state’s modern history, and the conditions that produced it have been funded, not fixed.
What is a bar advocate?
Massachusetts does not run its public defense system the way most people picture it. There is no single public defender’s office handling every case.
The Committee for Public Counsel Services, always called CPCS, is the state agency responsible for representing indigent defendants. It employs staff public defenders. But CPCS does not have anywhere near enough of them, so most of the work goes to private attorneys who take appointments case by case and bill the state by the hour. Those attorneys are bar advocates, and they handle roughly 80 percent of the caseload.
They are not state employees. They have no salary, no benefits, no pension, and no union. They are solo practitioners and small-firm lawyers who take appointed work alongside whatever private clients they have. Many sign up for “duty days,” where an attorney is assigned to one courthouse for a full day to take appointments as they come in, typically at arraignment.
That structure is the reason a pay dispute could shut down the courts. You cannot order an independent contractor to accept a new client. When enough of them decline at once, the system has no fallback.
The pay, and the number that explains everything
The Legislature sets bar advocate rates directly by statute. Before August 2025, the rates were $65 an hour for District Court work, $85 for Superior Court, and $120 for murder cases.
Here is the comparison that makes the dispute intelligible, and it comes from the Supreme Judicial Court’s own opinion, quoting figures CPCS reported. The minimum hourly rates in the rest of New England at the time:
- Maine: $150
- New Hampshire: $125
- Rhode Island: $112
- Vermont: $100
- Connecticut: $88
- Massachusetts: $65
Massachusetts paid less than every neighboring state, and less than half what Maine paid. That rate is gross, not net. Out of it a bar advocate pays for office space, malpractice insurance, staff, filing costs and self-employment tax.
The court also noted that the number of available bar advocates had been declining for years, and that Suffolk and Middlesex Counties were struggling to fill duty day slots before the stoppage began. The system was already failing quietly. The stoppage made it fail loudly.
The work stoppage
In late May 2025, bar advocates across the state stopped accepting new appointments. They asked for $100 an hour in District Court.
The effect was immediate, because the system had no reserve capacity. By late July 2025, CPCS reported nearly 3,200 people without appointed counsel and 145 people sitting in custody without a lawyer.
Then the constitutional machinery took over.
What is the Lavallee protocol?
This is the part that turns a labor dispute into dismissals, and it is settled Massachusetts law rather than anything improvised in 2025.
In Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004), the SJC faced the same problem in miniature. Nineteen indigent defendants in Hampden County had no lawyers because the county’s bar advocate program could not recruit attorneys at the rates then authorized. The court held the defendants were being deprived of their right to counsel under article 12 of the Massachusetts Declaration of Rights, and it built a remedy.
The remedy is what everyone now calls the Lavallee protocol. As the SJC described it in 2026, it establishes “presumptive time limits for the assignment of counsel.” Courts must hold prompt status hearings for defendants detained more than seven days without counsel, and for defendants whose cases have been pending more than forty-five days without counsel.
At that hearing the judge determines whether, despite good faith efforts by CPCS and the bar advocate programs to find someone, there is still no lawyer. If that is the finding, the consequences follow: a detained defendant is released while the case continues, and a case pending past 45 days is dismissed without prejudice.
Two points people get wrong. First, dismissal without prejudice means the Commonwealth can bring the charges again. These cases were not thrown out permanently. Second, release is not acquittal. The prosecution continues against a defendant who is no longer held.
The protocol exists because the alternative is worse. Holding someone in a cell on an unprosecuted charge with no lawyer is the exact condition article 12 forbids.
What actually happened
Through the stoppage, judges applied the protocol as written. One Boston judge dismissed more than 120 cases in a single stretch in July 2025.
By the Boston Globe’s accounting in February 2026, drawing on court data, judges had dismissed at least 1,687 cases and released 198 people. The courts described those as conservative counts, and they exclude defendants who defaulted by failing to appear, since Lavallee hearings are not scheduled for defaulted defendants. The real figures are higher.
Consider what that means for the people on the other side of those cases. Every dismissed case had a complaining witness, and in a meaningful share of them a victim of an assault or a theft watched the prosecution end because the state would not pay the defense lawyer $100 an hour.
How it was patched
Two responses, neither of them a fix.
In August 2025 the Legislature raised the rates in two stages. As of August 1, 2026, they are:
- District Court: $85 per hour, up from $65
- Superior Court, other than murder: $105, up from $85
- Murder: $140, up from $120
- Appeals and children and family law: $105, up from $85
- Juvenile, mental health, children requiring assistance: $85, up from $65
The same legislation put roughly $40 million toward hiring about 320 additional staff public defenders by the end of fiscal 2027, which addresses the structural dependence on private attorneys rather than the rate.
In October 2025 CPCS added a temporary incentive program letting attorneys earn up to $7,500 in supplemental compensation for taking cases on top of the raised rate. It worked: CPCS assigned lawyers to more than 1,500 defendants through it. It was extended three times.
By February 2026 the emergency had passed. Only about 25 recently charged people lacked lawyers, and courts had not needed a Lavallee hearing for at least a month. A defense attorney quoted at the time put the fragility plainly: when the incentives expire, “then we’re just teetering on the edge of being back where we were.”
Note what the $85 District Court rate still is, measured against that New England table. It remains below Connecticut’s $88, and it is a little more than half of Maine’s $150.
The SJC said it is not the court’s job
The most consequential legal development got the least coverage.
During the stoppage, a District Court judge ordered that attorneys representing defendants he declined to release be paid $100 per hour. On September 18, 2025, a single justice reserved and reported to the full court the question of whether any court had authority to order increased rates given the shortage.
The answer came in Committee for Public Counsel Services v. Middlesex and Suffolk County District Courts, SJC-13824, argued November 5, 2025 and decided March 16, 2026. The court said no.
Because CPCS had not shown that the incentive program and the existing protocol were “insufficient to maintain a constitutionally adequate court system,” and because there had been no showing that remediation attempts were exhausted, the court held “it would be inappropriate for the judiciary to order rate increases.” It grounded that in article 30 of the Massachusetts Declaration of Rights, the separation of powers provision.
The conclusion is blunt:
“Because the petitioner has not provided evidence that the current statutory rates for bar advocates are insufficient to maintain a constitutionally adequate judiciary capable of protecting indigent criminal defendants’ right to counsel, we decline to disturb the Legislature’s funding decision.”
There is history behind that deference. The court noted that the judiciary once ran this system itself, appointing counsel for capital defendants in the late eighteenth century, before the Legislature recognized a capital defendant’s right to counsel in 1820, and that most attorneys served without compensation until 1893. Rate-setting moved to the Legislature by statute in 2005. Under G. L. c. 211D, section 11(a), CPCS had been able to set rates “subject to appropriation,” but the Legislature repeatedly rejected what CPCS proposed and specified lower numbers, so in 2005 it took the job outright.
The practical meaning for anyone waiting on a lawyer: no judge is going to solve this. Relief comes from the Legislature or it does not come.
The antitrust provision, and the lawsuit
The August 2025 law that raised the rates carried something else. It provides that:
“An agreement between private bar advocates to refuse to compete for or accept new appointments or assignments unless the rates of pay under this section are increased shall be evidence of a violation of [state antitrust law].”
The logic is that bar advocates are independent contractors rather than employees. Employees who act together to withhold labor are protected by labor law. Independent businesses that agree not to compete on price are, in the ordinary case, committing an antitrust violation. The provision writes that theory into the statute.
On May 7, 2026, the Massachusetts Association of Private Appointed Counsel and six veteran defense attorneys filed suit in the Supreme Judicial Court challenging it, naming Attorney General Andrea Campbell as defendant. They argue the provision unlawfully applies antitrust penalties to attorneys who stop accepting new indigent clients in protest over compensation, and that threatening criminal and civil liability against lawyers advocating for higher pay violates the First Amendment.
The tension is real. The state’s position is that a coordinated refusal to take appointments is price-fixing by independent contractors. The advocates’ position is that the only leverage available to people the state has classified out of labor protections is the collective refusal, and criminalizing it leaves them with no lawful way to contest a rate the Legislature alone controls, in a system where the SJC has already said courts will not intervene.
That case was pending as of publication.
Why this can happen again
Nothing in the current arrangement prevents a repeat.
The rate is still the lowest in New England. The supply of bar advocates was declining before the stoppage and the raise has not been shown to reverse it. The incentive program that ended the emergency was temporary by design. The 320 new public defenders will not all be hired and trained until the end of fiscal 2027, and they were budgeted to reduce reliance on bar advocates, not to eliminate it.
What has changed is that one side now has a statute pointed at it. Whether that statute survives the MAPAC challenge is the question that decides how the next round is fought.
If you are facing charges without a lawyer
Practical steps, in order:
- Request court-appointed counsel at arraignment, out loud and on the record. The clock that matters starts when the request is documented.
- Go to every court date. Defaulting removes you from the protocol entirely, because Lavallee hearings are not scheduled for defaulted defendants. Missing a date is the single worst thing you can do.
- Track the dates. Seven days detained without counsel, and 45 days pending without counsel, are the presumptive triggers for a status hearing.
- Ask the clerk to schedule a Lavallee hearing by name if you pass those marks with no lawyer.
- Say nothing about the facts to anyone. Not police, not a cellmate, not on a recorded jail call. This costs nothing and protects more than anything money buys later.
- Understand what relief looks like. Release is not acquittal, and dismissal without prejudice means the charges can be refiled.
If you can pay privately, our guide to what a criminal defense lawyer costs in Massachusetts covers fee structures and the questions to ask. To follow the docket yourself, see how to look up a Massachusetts court case.
Common questions
What is a bar advocate in Massachusetts?
A private attorney who accepts court appointments to represent defendants who cannot afford counsel, billing the state at rates the Legislature sets. Bar advocates handle roughly 80 percent of the state’s indigent defense caseload. They are independent contractors, not state employees.
What is the Lavallee protocol?
A remedy from Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004). It sets presumptive time limits: a status hearing for defendants detained more than seven days without counsel, and for cases pending more than 45 days without counsel. If a judge finds no lawyer can be found despite good faith efforts, the detained defendant is released and the 45-day case is dismissed without prejudice.
Can my case really be dismissed if I am not given a lawyer?
Yes. At least 1,687 Massachusetts cases were dismissed on that basis between May 2025 and February 2026. The dismissal is without prejudice, so the charges can be refiled.
How much do Massachusetts bar advocates get paid?
As of August 1, 2026: $85 per hour in District Court, $105 in Superior Court, and $140 in murder cases. Before August 2025 those rates were $65, $85 and $120.
Why did the bar advocates stop taking cases?
Compensation. Massachusetts paid less than every other New England state, $65 an hour against $150 in Maine, $125 in New Hampshire, $112 in Rhode Island, $100 in Vermont and $88 in Connecticut. They sought $100 an hour for District Court work.
Can a judge just order higher pay?
No. In CPCS v. Middlesex and Suffolk County District Courts, SJC-13824 (March 16, 2026), the SJC held it would be inappropriate for the judiciary to order rate increases, citing separation of powers under article 30. Rates are set by the Legislature.
Is the work stoppage over?
The emergency eased by February 2026, when only about 25 recently charged people lacked counsel and courts had gone a month without a Lavallee hearing. The rate remains the lowest in New England and the program that ended the crisis was temporary, so the underlying problem is unresolved.
Rate schedules as published by the Massachusetts Legislature. Quotations from Committee for Public Counsel Services v. Middlesex and Suffolk County District Courts, SJC-13824 (March 16, 2026), taken verbatim from the slip opinion; comparative New England rates as reported by CPCS and recited in that opinion. Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004), and Carrasquillo v. Hampden County District Courts, 484 Mass. 367 (2020). Dismissal and release counts as reported by the Boston Globe, February 2026, from court data described as conservative. Stoppage and caseload figures as reported by WBUR and GBH, 2025. Lawsuit details as reported by the Eagle Tribune and Yahoo News, May 2026; that case was pending as of publication. General information about Massachusetts law, not legal advice.