Amendment #332 to H3400

CPCS Reform

[Sponsors] Representatives Winslow of Norfolk, Barrows of Mansfield, Levy of Marlborough, and Webster of Pembroke move to amend the bill by striking out in SECTION 60, in lines 724 - 732, the proposed section 2, and inserting in place thereof the following:

“Section 2. The committee for public counsel shall establish uniform standards and procedures for the determination by the courts of the commonwealth that a person who is entitled by law to counsel in criminal or civil proceedings is destitute, indigent or marginally indigent and unable to obtain counsel at the prevailing rates of private counsel. Said standards and procedures, and any amendments thereto, shall be subject to the approval of the supreme judicial court and shall be used by the courts of the commonwealth in determining the assignment of cases to the committee pursuant to section 5.

For purposes of this making such a determination, "indigent person" shall be defined to have the same meaning as section 27A of chapter 261 unless the court finds after inquiry that the person is destitute. A "destitute person" is defined as a person who is indigent and also has no ability to pay $150 for the costs of counsel within a 180 day period without depriving himself or his dependents of food, habitable shelter or basic necessities of life; provided that no court shall have discretion to find a person destitute unless the indigency verification officer first conducts an inquiry of the person under oath and makes specific recommendations for the court’s review in the case docket. For purposes of such inquiry, the following circumstances shall create a rebuttable presumption that the person is not destitute: the person smokes at least a pack of cigarettes daily; the person resides in a household with cable television service; the person resides in a household with internet service; the person owns a motor vehicle for personal use that is less than 3 years old or with a book value greater than $25,000; the person owns two or more functional motor vehicles for personal use; the person resides in a household with telephone service and the person also has a mobile telephone for personal use; the person resides in a household with telephone service and the person has a pager or similar personal electronic device for personal use; the person has any ownership interest in real estate, boat or recreational vehicle for personal use, money market account, certificate of deposit, bank account, stocks or bonds valued more than $150; the person has one or more credit cards with available cash advance credit limit of at least $150; the person is claimed as a dependent by a parent or guardian or who is substantially supported by a parent or guardian who possesses any of the foregoing assets unless that parent or guardian has an adverse interest in the case or the legal guardian is the commonwealth; or the person admits on inquiry by the court that he has the ability to pay $150 over a 180 day period. A "marginally indigent" person is defined as a person who is neither destitute nor indigent but has an annual income, after taxes, of more than 125 per cent and less than 250 per cent of the then current poverty threshold referred to in clause (b) of the definition of "indigent" in section 27A of chapter 261 of the General Laws; who has insufficient funds to pay for counsel at the prevailing rates of private counsel and who has the ability to pay $300 or any additional amount determined after inquiry by the justice making the assignment.”.

And further, in said SECTION 60, in lines 724 - 732, by striking the proposed subsection (g) of section 2A and inserting in place thereof the following:

“(g) Notwithstanding the provisions of any special or general law to the contrary, persons determined to be destitute shall pay no fee for the services of assigned counsel; persons determined to be indigent shall pay $150 for the services of assigned counsel; and persons determined to be marginally indigent shall pay $300 for the services of assigned counsel, plus any additional amounts ordered to be paid by the justice making the appointment.  If, upon the bi-annual re-assessment of the person’s indigency status, the indigency verification officer concludes that the person is able to the pay the counsel fee of which the person obtained a waiver, the waiver shall be invalid and the officer shall re-impose the counsel fee. Payment of any counsel fees by persons who are indigent or marginally indigent shall be made to the probation department of the appointing court, and shall otherwise be deposited in the General Fund.”.