New public defenders help but don’t fully alleviate court’s troubles finding enough defense lawyers

The director of indigent legal services cautions that five people are not enough to solve the systemic problems.

by | January 15, 2023

Judges and court clerks have been unable to find enough available attorneys to immediately serve indigent clients since 2022, and courts have seen no improvement since. Photo by Fred J. Field.

State officials say they’re barely keeping up with the demand for lawyers to represent the poor in criminal and family cases, even as Maine takes gradual steps to shed its status as the only state without a public defender system.

Maine’s first five public defenders began working on criminal cases late last year, and Gov. Janet Mills last Wednesday proposed funding for 10 more lawyers. But Justin Andrus, who runs the agency that coordinates indigent legal services, said adding a few public defenders is not a sustainable way to staff cases and won’t fix the court’s backlog. 

“The reality is that five people can’t realistically resolve the issue at a systems level,” said Andrus, the executive director of the Maine Commission on Indigent Legal Services, or MCILS.

As Mills was putting the final touches on her budget proposal last week, an email went out to lawyers that underscored the ongoing shortage for indigent clients. Twenty-seven adults, juveniles and parents needed lawyers on Jan. 9, and the courts couldn’t find anyone to represent them.

That same day there were only 64 lawyers accepting adult criminal cases and 72 lawyers accepting child protection cases across the entire state, according to MCILS. At its peak five years ago, MCILS had more than 400 contracted lawyers.

MCILS was formed by the state Legislature in 2009 to take over from judges the responsibility of overseeing and paying defense lawyers assigned to represent adults and children charged with a crime who cannot afford to hire their own lawyer. Judges still decide whether a defendant financially qualifies for a lawyer at the state’s expense and makes the initial appointment.

Judges and court clerks have been unable to find enough available attorneys to immediately serve indigent clients since late last year, the Monitor reported. The courts have seen no improvement since then, said Barbara Cardone, spokeswoman for the state courts.

It is hard to measure whether it has gotten worse or stayed the same, but we are struggling to clear the criminal docket backlog without additional lawyers,” Cardone wrote in an email Thursday.

A bipartisan coalition of state legislators in 2022 funded a “Rural Defender Unit” that would send public defenders employed by MCILS to areas of the state without enough lawyers. Mills, a Democrat, announced Wednesday an additional $3.6 million to add another 10 public defender jobs as part of her proposed $10.3 billion state budget. 

The five public defenders absorbed most of the criminal cases that MCILS knew didn’t have lawyers in late December 2022, but Andrus said the arrival of the lawyers was “fortuitous” timing and not a sustainable way to staff cases. 

“Sustainable implies to me that there’s going to be some foreseeable period in which the available resources are up to the task of serving the available caseload. We’ve created a small reservoir of capacity — and that we’re funneling some of the caseload into that capacity does not mean sustainability unless the capacity grows, or the system inputs decrease, or both,” Andrus said. 

Rep. Stephen Moriarty (D-Cumberland) said he is also “extremely troubled” by the decline in lawyers taking new assignments to indigent cases. 

The five public defenders are a start, he said, though “that’s not enough to scratch the surface.”

To attract lawyers to take cases and also provide a cost-of-living adjustment to operate their businesses amid inflation, state Sen. Lisa Keim (R-Dixfield) submitted an emergency bill to raise private court-appointed attorney wages from $80 to $150 an hour. If passed by the Legislature, the emergency provision would allow the raise to be implemented sooner than other bills.

A $473 million heating relief bill passed by the Legislature cannibalized money that might have been available to fund her bill, Keim said. 

“It takes money and we just spent everything,” Keim told The Maine Monitor.

Maine is required by the federal constitution to pay for a lawyer for adults charged with crimes at risk of jail who cannot afford to hire their own lawyer.

MCILS has a current budget of $28.1 million a year. The commission proposed a $62.1 million a year budget, with more than $33 million of new spending on public defender offices, more employees, an internship program and student loan mitigation for contracted lawyers.

The governor’s budget proposal included $17 million in new spending — a little more than half what MCILS sought — to create a plan for tiered wages based on case complexity and add public defender jobs. Lawmakers will work on the budget, which directs the next two years of state spending.

Cardone said the judicial branch is waiting to see when the Legislature will address the court’s need for resources. She pointed to the governor’s budget proposal, legislation and comments by Speaker Rachel Talbot-Ross (D-Portland) on Maine Public Radio that supporting access to justice is a top priority

“Making sure that folks have access to justice, and that our courts have the security and the safety and the capacity to take care of this incredible backlog — that we will get there. No doubt in my mind that we will get there, and we will get there soon,” Talbot-Ross said during the Maine Calling appearance.

Meagan Sway, policy director for the ACLU of Maine, said the Legislature needs to look comprehensively at all the issues.

“It requires a systemic approach and it requires not just addressing the lawyer shortage and the way we appoint lawyers. It requires looking at caseloads. It requires looking at the right to a speedy trial and whether that’s available to Maine citizens — and it’s not,” Sway said.

A decision by the Maine Supreme Judicial Court about speedy trial rights also looms. 

Lawyers with the ACLU of Maine and MCILS submitted amicus briefs in support of changing the state’s legal test for when a defendant’s right to a speedy trial has been violated. Justices heard arguments in Dennis Winchester v. State of Maine in October and have not yet delivered a written decision. That could have major implications for backlogged criminal cases. 

Andrus said he fears some people in government and the courts expect that the five public defenders will fix more than they reasonably can. 

There also are gaps in the coverage the new public defenders can provide. None of the lawyers have the training or experience to work on child protection cases to provide legal assistance to parents accused of child abuse or neglect, Andrus said. 

“I am deeply concerned that … there will be pressure to have them take more cases than is reasonable and I intend to do my best to stand in the way of that pressure so they can do their jobs, which is to stay focused on the client,” Andrus said.

 

Samantha Hogan reports on Maine’s criminal justice system and government accountability for The Maine Monitor. Reach her by email with other story ideas: samantha@themainemonitor.org

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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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