Mainers care about justice. I know, because I marched with Mainers demanding a criminal justice overhaul in the largest protest in Maine history last June. We marched again, and again. Yet, Maine is the only state in the union without a public defender service. Instead, the state relies entirely upon private counsel who often are inexperienced, overworked, or – as recent studies have shown – far worse, and paid at low, fixed rates to represent indigent defendants. This is a travesty. Mainers should demand a robust, statewide public defender service.
Fully half of the Bill of Rights focuses on protecting the criminally accused. This is because, as legendary defense attorney Jonathan Rapping puts it: “The men who drafted our Constitution were keenly aware of the danger to all of us if the government is allowed to point an accusatory finger at any citizen, embroil that person in a complex legal system through which he cannot maneuver, and use the outcome to take the citizen’s freedom.” This breed of tyranny can be checked only by zealous defenders. Without defense attorneys willing to call out the government for overstepping its constitutional authority, no remedies exist to hold the government accountable. Every Mainer’s rights, not only to a fair trial, but also to privacy and security in one’s home, depend on competent, professional defenders.
In a recent, thorough and data-driven report on the Maine Commission for Indigent Legal Services, which runs Maine’s system of appointed counsel, ProPublica and the Maine Monitor highlighted the woeful lack of oversight for attorneys who receive contracts to represent poor Mainers. These attorneys receive little to no training and need no background in criminal law. Most are solo practitioners without support staff. Some, certainly, are talented and compassionate attorneys, but many are entirely unsuited for the job. ProPublica documented appointed attorneys completely ignoring or even actively harassing their clients. The commission is simply unable to handle its role.
A bipartisan group of legislators supports reforming Maine’s indigent defense system. The only sensible next step is for Maine to join the 49 other states and establish a public defender service. This would allow for real leadership and a shared community necessary to create a culture of zealous advocacy. Appointed private attorneys have no institutional support and no opportunities to learn from and collaborate with other defenders. Under these overwhelming circumstances, even attorneys with the best intentions will gradually become desensitized to the injustices their clients face. The work of a public defender is incredibly taxing; defenders should all have the emotional and professional support that only an office community can bring.
Attorneys in a public defender service, unlike appointed counsel, are able to work together toward a shared goal with coordinated tactics. Public defenders are far more efficient, as the office can pool its resources to create databases with sample motions and briefs – a luxury that appointed counsel does not have, wasting precious time repeating the work of other independent attorneys throughout the state (on the taxpayers’ dime). The defender service also has real negotiating power. In other states, over 80 percent of all criminal defendants are represented by public defenders, allowing the public defender service to call out unfair prosecutorial practices in a way that solo appointed counsel cannot. University of Michigan Law professor Eve Primus has written extensively on the disparities between public defense and appointed counsel. As she notes, public defenders can set enforceable limits on attorney caseloads, while appointed private attorneys will always be incentivized to take on as many cases as possible, lowering the quality of their representation.
This country is experiencing a real reckoning over the criminal system’s unjust nature, especially toward Black people and other people of color. Mainers like me marched because of a deep-seated anger at violent injustice perpetrated by police and prosecutors across the country. No stronger check exists on those institutions than a strong public defender service. A Philadelphia study, for instance, found that public defenders reduce the overall expected time served in prison by 24 percent, compared to appointed counsel. Amid this civil rights movement, Mainers should demand a more just system. Maine needs a public defender service.
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