Maine reaches ‘point of failure,’ seeks $62.1 million for indigent public defense

Lawmakers are asked to double state spending on poor, criminal defendants.

by | August 22, 2022

The commission that oversees legal services for criminal defendants who can’t afford their own lawyers voted Monday to recommend a $62.1 million budget next year, more than double what the state currently spends, to respond to what several officials described as a system in crisis. 

The vote comes at an urgent time for the Maine Commission on Indigent Legal Services, or MCILS, which acknowledged for the first time Monday that 10 defendants in Aroostook County didn’t have lawyers and that the courts haven’t been able to find qualified attorneys to represent them. 

“We have in the past been talking about getting to the point where we’re in danger of not being able to assign counsel, we are now there,” said commission Chairman Josh Tardy. “… We know we are at a critical point and at some point the appropriators are going to have to acknowledge that and provide the funds or the system will collapse.”

The commission’s vote is the first step in a lengthy state budget process that lawmakers will undertake in 2023 to set the next two years of state spending. Tardy warned it may not offer a solution soon enough for MCILS and a special session of the state Legislature may be needed.

MCILS has a current budget of $28.1 million a year. The proposal asks lawmakers to more than double the state’s annual spending to defend adults and children charged with crimes, parents facing the possible loss of their right to parent their children and people on mental health holds.

Major sections of the budget include a $150 an hour wage for court-appointed lawyers and a significant expansion of public defenders in Maine. 

The proposal includes four new public defender offices. Two offices would provide direct trial-level services to defendants, another would work exclusively on appeals and a fourth office would be dedicated to post-conviction reviews.

MCILS has made similar public defender office proposals during the past two years. Those efforts won the support of some key lawmakers, but were ultimately left unfunded by the state’s appropriation committee.

“I am hopeful that as we have finally arrived at the point of failure, the Legislature will recognize what it needs to do,” said Executive Director Justin Andrus.

Maine was the only state in the nation to employ no public defenders. A bipartisan deal brokered by lawmakers earlier this year allocated $966,000 to hire Maine’s first five full-time public defenders. Hiring has not yet begun because MCILS and the Bureau of Human Resources cannot agree on how much the public defenders should be paid.

Andrus said he intended for the head District Defender and public defenders to be paid comparably to the state’s District Attorneys and assistant district attorneys to ensure parity between the prosecution and defense. The district attorneys have a special pay scale that MCILS may not be allowed to use, however, he said.

The need to attract new attorneys to provide Maine’s indigent legal services is dire. There has been a steep decline in the number of attorneys willing to do indigent defense work since 2018, MCILS records show. There are currently 185 lawyers accepting cases.

“If we’re not able to offer comparable pay then we’ll be less attractive to an applicant trying to decide between the defense and prosecution,” Andrus said.  

To attract and retain attorneys, the commission also endorsed a new student loan mitigation program for lawyers who agree to devote some of their law practice to indigent legal services, an internship program for law students and compensation for attorneys to attend MCILS training events in the budget. 

Commissioners said their top priority is to increase attorney compensation and recommended raising the pay for court-appointed attorneys from $80 to $150 an hour. The increase is expected to cost $21.4 million annually. 

Commissioner Ron Schneider said he was “totally supportive” of the proposed budget but that “it doesn’t have a chance” of being funded by the Legislature.

“We have to remember that we don’t charge people. We don’t arrest people. We don’t schedule their cases. We’re responding, but if we can’t respond then that causes a problem overall for the system and the state and not us alone,” Schneider said. “So perhaps it will prompt a comprehensive response.”

MCILS has been under intense scrutiny since 2016 when lawmakers began questioning its financial accountability. A report by outside public defense experts later concluded that Maine’s criminal docket appeared to be operating with little regard for defendants’ constitutional rights. 

Gov. Janet Mills appointed all new commissioners in 2019 and they have taken steps to improve financial oversight and enforce rules about attorney representation.

Those reforms fell short of what civil rights lawyers said was necessary. The ACLU of Maine filed a class action lawsuit against MCILS commissioners and executive director in March 2022 for failing to create an effective public defense system. 

The proposed budget “would go a long way to addressing the objections of those who think we’re constitutionally infirm,” Tardy said.

“It’s a lot of money,” said Tardy, a former state Republican lawmaker and a self-described budget hawk. “… But the fact is that I voted for that budget recommendation today.”

 

Samantha Hogan reports on government accountability and the criminal justice system for The Maine Monitor. Reach her by email with suggestions for other stories: samantha@themainemonitor.org

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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