On April 1, leaders of a state agency tasked with providing legal representation to low-income Mainers wrote a desperate plea to state leaders.
There is a chance, members of the Maine Commission on Indigent Legal Services wrote, that soon the state won’t have enough attorneys to serve its thousands of indigent defendants. Maine is the only state in the nation without a public defender’s office, instead reimbursing private attorneys who sign up to represent Mainers who can’t afford their own lawyers.
In its letter, the commission requested that state lawmakers and the governor’s office fund several pieces of legislation to create new staff positions, increase the rate at which lawyers are reimbursed for their work and make legal defense more accessible in rural areas of the state.
“We asked to sit down, and we asked for people to tell us directly, personally and publicly what their objections were,” said commission Director Justin Andrus in a meeting with attorneys Monday afternoon. “I didn’t receive a response.”
Hours after midnight last Friday, the Appropriations and Financial Affairs Committee approved a supplemental budget for the next fiscal year, but there was no mention of indigent legal services. Now, commission officials are racing to salvage something lawmakers can still agree to fund, knowing not all the initiatives they were seeking will be approved for funding this year.
Andrus said the commission has received abundant support from the Legislature’s Judiciary Committee, which gave bipartisan endorsement to most of its legislative requests. Over the weekend, the House chair of the committee, Rep. Thom Harnett, D-Gardiner, said the panel amended one of the commission-related bills in hope that the Appropriations Committee would dedicate leftover funds to it after the budget is approved.
The amended legislation would support attorneys on the commission’s roster with continuing legal education and research resources, and it would fund a five-member mobile team of public defense attorneys who could be dispatched as needed to underserved, rural areas of the state.
On the cutting-room floor, however, are raises from $80 an hour to $100 an hour for participating attorneys, and a pilot program to start the state’s first public defender office in Kennebec County.
“It’s disappointing,” said Harnett. “It’s the view of the committee that we’re facing a crisis in Maine indigent legal services and we have to do something, and we have to do something now to address that.”
Harnett estimated there will be roughly $12 million in available state funding left over after the budget is passed. He said he hopes members of both parties in both chambers will support granting some of that money to the bill the Judiciary Committee amended over the weekend.
The commission, meanwhile, faces other problems, including a lawsuit from the American Civil Liberties Union of Maine, challenging the state’s ability to fulfill its responsibilities under the Sixth Amendment of the Constitution, which ensures legal representation to all criminal defendants.
The state filed a motion on April 8 asking that the judge overseeing the case dismiss the lawsuit.
But the litigation is only the latest event in a long history of struggles over how Maine provides indigent legal representation.
The nonpartisan Sixth Amendment Center, commissioned by the state to examine the Maine Commission on Indigent Legal Services, found in 2019 that the commission wasn’t supervising appointed attorneys and that there were disparities in the types of legal representation low-income people in Maine were receiving. In 2020, a state watchdog agency issued a similar report, noting a lack of structure and oversight of attorneys.
Robert Cummins, a Portland attorney who resigned from the commission in March, said Monday the consequences of a struggling indigent defense program could be dire.
“The system will break down,” said Cummins. “People who are entitled to their constitutional rights will be deprived of them. The criminal justice system in Maine will suffer an enormous setback. We’ll be paying for the consequences of that for some period of time.”
In its letter to lawmakers, the commission wrote that the reports on its work have been “lodestars for change.”
Robert Cummins, who resigned from the Maine Commission on Indigent Legal Services in his Portland office Friday, April 1, 2022. Shawn Patrick Ouellette/Staff Photographer
“We understand our history,” the letter said. “Today, however, there remains no basis for skepticism. The Commission, its staff, and the hundreds of attorneys who work to meet the State’s obligation to its citizens have demonstrated, and continue to demonstrate, that they will perform ethically, diligently, and forthrightly. And yet, the ability of the Commission to meet its prospective obligations remains imperiled. … Absent significant immediate improvements in the options MCILS can choose from to staff cases and provide appropriate support to counsel, the State faces the specter that it will fail to provide counsel to a person constitutionally entitled to representation.”
Joshua Tardy, a former lawmaker who now chairs the commission, said in an interview Monday afternoon he received no formal response from the leaders to whom his letter was addressed – the speaker of the House, Senate president, minority leaders in both chambers and the governor.
But Tardy said he’s been in constant communication with lawmakers informally and has been working with the Judiciary Committee on next steps following the Appropriation Committee’s vote.
“I continue to believe the funding requests made by the commission are reasonable and are critical,” Tardy said.
Neither the Senate nor House chair for the Appropriations Committee responded to requests for comment Monday. Staff for House Speaker Ryan Fecteau, D-Biddeford, pointed out that the budget does include funding for civil legal aid organizations, which also face a dire need for assistance, and that a budget approved in June 2021 allocated $20 million to increase the hourly reimbursement rate for attorneys from $60 to $80 an hour.
During a meeting of attorneys on the commission’s roster Monday night, Andrus, the commission’s executive director, expressed disappointment with recent events.
“I don’t understand where the wheels are coming off,” said attorney Taylor Kilgore. “Things can’t improve until we have the resources to improve them. We’re trying. We’re actively begging for the help.”
The meeting was one of three events the commission had scheduled to give attorneys on the roster a chance to review proposed rules to increase oversight of their work. The proposals include an auditing process and limits on the number of cases an attorney can agree to handle.
“I think that some of what is being proposed suggests to us … that we’re not worthy, that we need to be supervised, as if we don’t know what we’re doing,” said attorney Seth Berner.
Andrus said the rules were necessary to show state leaders that the commission deserves more support.
“It’s uncomfortable, but that’s what we’re up to,” Andrus said. “That’s why we’re doing it.”
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