Lawmakers make last-minute bid to “pony up” money for indigent legal defense

Maine Republicans and Democrats discuss splitting $1.2 million price tag to hire five public defenders.

by | April 19, 2022

After funding to hire Maine's first public defenders was left out of the state's supplemental budget, lawmakers are trying to find other funding. Photo by Samantha Hogan.

Lawmakers are making a last minute push to find money to hire Maine’s first public defenders after it was left out of the state’s $1.2 billion supplemental budget.

Behind closed doors, the legislative Democratic caucuses and Senate Republican caucus have discussed splitting the cost of a $1.2-million proposal to hire the state’s first five public defenders and to expand resources for court-appointed lawyers contracted with the Maine Commission on Indigent Legal Services, or MCILS. The agency is responsible for providing lawyers to adults and juveniles who cannot afford to hire their own attorney. 

Senate Republicans have signed on to the plan. House and Senate Democrats did not respond to a request to confirm they were on board with the plan, though a member said House Democrats had discussed the proposal.

House Republican leadership and budget committee members “have not made any commitments” about money for bills that have not yet been funded as of Tuesday evening, said John Bott, a spokesman for the Republican House office.

“I am waiting for the other caucuses to put their money where their mouth is,” said Sen. Lisa Keim (R-Dixfield) on Tuesday morning. “Instead of just saying they support changes in indigent legal services, to pony up some dollars because my caucus is 100% behind funding that bill.” 

State lawmakers are scheduled to complete their work and go home for the year on Wednesday, but they will try to jump over a series of procedural hurdles to fund the public defenders through a bill passed last year. 

The bill would be amended to appropriate:

$965,897 to MCILS to hire five public defenders who will work as a dispatchable “rural public defender unit” and travel to courts that do not have enough lawyers.

$275,580 to provide contracted defense lawyers, who accept court-appointed cases, access to online legal research tools and printed court rules, jury instructions and statutes.

The amendment also empowers MCILS to reimburse court-appointed lawyers for attending training that it provides. 

A member of the Legislature’s Appropriations and Financial Affairs Committee has agreed to sponsor the amendment, but that does not guarantee that the bill will be released from the Special Appropriations Table for a vote, Keim said. The vote could happen on Wednesday.

The decision not to provide any new funding to MCILS in the state’s supplemental budget blindsided some lawmakers as well as attorneys and leadership at the commission.

MCILS Executive Director Justin Andrus told lawyers at a forum on Monday that he was disappointed in the budget committee’s decision not to appropriate MCILS any of an $8.1 million proposal put forward by the Judiciary Committee to open a public defender office, contract specialists, raise lawyer wages, host training and better resource defense attorneys. Andrus said he believed the commission had demonstrated its worthiness for additional resources in the prior year. 

“I don’t care how rich you are, you end up in jail without access to your resources — you need assigned counsel. What’s the principled objection? I can’t tell you,” Andrus said to lawyers on Monday.

A proposal to increase the reimbursement rate for court-appointed attorneys from $80 to $100 an hour is dead. The proposal was estimated to cost $4.6 million to implement.

Several lawyers who provide court-appointed legal services through MCILS have left due to caseloads and changes to the agency’s rules. It is nearly certain that more lawyers will leave the service if resourcing isn’t improved and there is an acute risk that there will be a case that MCILS will not be able to find a lawyer for — as is required by the state and U.S. constitutions — if funding isn’t approved, Andrus said.

This budget cycle has reinforced for Andrus that the Legislature should be required to consider the budget for MCILS in tandem with the state’s prosecutorial and public safety agencies budgets so that there is parity of resources between defense and prosecution for the state.

“The reality is we spend a lot of our time lobbying for resources when I would prefer to spend that same time working directly to ensure that we’re either improving things programmatically or that we are operating a program properly,” Andrus told The Maine Monitor.

“It’s very difficult to plan. It’s very difficult to have long-term vision for what we could be or how we operate when we don’t know from year-to-year what to expect,” he added.

Gov. Janet Mills did not include additional funding for MCILS in her proposed supplemental budget earlier this year. 

Legislators on the state’s Judiciary Committee later ranked $8.1 million for MCILS as its top-two priorities this year. The initiatives were the “bare minimum” needed for MCILS to operate effectively after Mills had “inconceivably left out” MCILS from the supplemental budget, lawmakers wrote in a letter to the state budget committee earlier this month. 

The budget committee didn’t vote to give MCILS the money before unanimously passing the $1.2 billion supplemental budget on April 15, which includes operational expenses for other state agencies and reimbursement checks for Maine adults. Lawmakers called it a “prudent” budget with bipartisan compromises.

Rep. Laurel Libby (R-Auburn) criticized the lack of money for MCILS on the House floor during debate of the supplemental budget on Tuesday. She pointed to the recent lawsuit that the ACLU of Maine filed against MCILS for the state’s alleged failure to create an effective public defense system in violation of defendants’ constitutional rights.

“This supplemental budget does fulfill a number of wish lists, but it fails to provide for some very real and desperate needs in our state,” Libby said.

The House of Representatives voted, 119-16, to pass the budget and was passed in concurrence by the Senate on Tuesday. Kiem voted against the budget citing the lack of money for MCILS.

The budget will go next to Mills to sign.

Samantha Hogan

Samantha Hogan

Samantha Hogan focuses on government accountability projects for The Maine Monitor. Samantha, who was named 2021 Maine Journalist of the Year by the Maine Press Association, joined The Maine Monitor as its first full-time reporter as a 2019 Report for America corps member. She spent 2020 reporting exclusively on Maine's court system through the ProPublica Local Reporting Network. Samantha previously worked for The Frederick News-Post, covering state politics, agriculture, the environment and energy, and interned twice for The Washington Post.


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