The Bill of Rights mandates that anyone charged with a crime deserves a speedy and public trial before an impartial jury “and to have the assistance of counsel for his defense.”
In 49 states, that means a public defenders office, where lawyers employed by the government advocate on behalf of people who cannot afford to defend themselves. In Maine, it means something else.
Here, indigent defense is supplied by the state through private attorneys who are assigned to cases by judges and paid an hourly rate well below what most of them would charge a paying client. It’s easy for lawyers to qualify to receive court appointments, and once on the list, they receive next to no supervision or evaluation.
It’s easy to see why. The Maine Commission on Indigent Legal Services, with a staff of just three people, has to oversee nearly 600 attorneys, handling cases in 47 courthouses presided over by approximately 90 justices, judges and magistrates. The office is also responsible for paying the appointed lawyers’ bills, including those from a significant number of lawyers who bill for more than eight hours per day, five days per week, 52 weeks a year. That has led to allegations of overbilling, which are difficult to evaluate because of the agency’s lack of resources.
It’s time to rethink Maine’s method of delivering this constitutionally mandated service, and lawmakers are expected to take up the issue when they return to Augusta in January. A study by the nonprofit Sixth Amendment Center, commissioned by the Legislature in 2018, gave them plenty to work with. The study found a number of faults and made recommendations, perhaps none as important as adequately funding the system, increasing the hourly rate paid to lawyers so they can give their clients the attention they deserve, and increasing resources for the commission, so it can better oversee the lawyers assigned to cases.
But a good place for lawmakers to start is with a question: Why is Maine the only state that uses this system?
According to the Sixth Amendment Center, other states moved to public defender agencies for two reasons: cost and quality.
It’s easier to predict and control costs with a department that has a budget than when the state is paying invoices from outside lawyers, which can come in at any time. And it’s possible to train and supervise employees in a way that can’t be done with outside contractors. Maine’s system creates an incentive for court-appointed lawyers to race through cases, taking on more work than they can reasonably expect to do well.
What is it about Maine that makes us less interested in managing the cost and quality of a service that we are required to provide?
Replacing Maine’s system with a public defenders office is not the only reform that lawmakers can consider.
But the only option that should be off the table is the option of doing nothing. As long as there are such serious flaws in the indigent defense system, justice can’t be done.
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