To the surprise of absolutely no one, Maine’s system for indigent legal services is in crisis, without enough lawyers to cover cases, or money to attract more.
People wait outside the Biddeford District Court to make their initial court appearances. Earlier this year, lawmakers agreed to allocate $966,000 to employ Maine’s first five full-time public defenders. But hiring has not yet begun, and no one thinks that will be enough. Photo courtesy Gabe Souza
The system has been headed toward this emergency for months, even years now, yet Gov. Mills and the Legislature have failed to take sufficient action.
They cannot wait any longer. Gov. Mills should call immediately for a special session of the Legislature so lawmakers can provide funding as soon as possible.
Every day she waits is another day that the state of Maine violates the rights of defendants who cannot afford their own legal representation – rights given to them under the Sixth Amendment of the U.S. Constitution.
The state has been violating those rights for some time, thanks to its one-of-a-kind system for providing indigent legal services.
Maine is the only state without a public defender’s office. Instead, it pays private attorneys to represent poor defendants through the Maine Commission on Indigent Legal Services.
It has been an insufficient system for years. But warning bells really began ringing in late 2019, when the Government Oversight Committee ordered an investigation following a study that cited “serious concerns” about overbilling and inadequate performance.
While the commission has made improvements since then, it has not overcome its central issue: There aren’t enough lawyers willing to take cases.
The problem has only gotten worse since the pandemic, as the courts try to work through a backlog. There are now 27,600 pending misdemeanor and felony cases in Maine, the Press Herald reported Thursday, up from about 17,000 in September 2019.
Amid this crisis, defendants are waiting weeks, even months, before they get legal representation, and longer to get any kind of resolution.
What’s more, half of the open cases involving indigent defendants are being managed by just 33 lawyers. Eleven attorneys in the system have more than 301 open cases each.
How are they possibly giving each case the time and attention it deserves? They clearly aren’t, and everyone involved in the system knows it.
The governor and legislators could have fixed it last session by providing enough money to raise rates. Though rates have been increased from $60 an hour to $80 an hour in recent years, that’s not nearly enough to attract lawyers who have their own staffing and office costs to think about.
They did pass a bill funding a group of five public defenders who can take cases all over the state. But hiring has not yet begun, and no one thinks that will be enough.
From the next state budget, the commission has asked for $62 million, more than double its current budget, which would allow for a rate of $150 an hour. It would be enough to make a difference, but if approved that money wouldn’t be available until late next year.
To get them through, the commission is asking for a $13.3 million supplemental appropriation, meaning it would come out of the current two-year state budget. If approved, the money would be available immediately.
Such spending would require a special session of the Legislature, called either by the governor or a majority of each legislative caucus.
Gov. Mills shouldn’t wait. She should call legislators to the State House and ask them to pass the funding necessary to keep the indigent legal system from collapsing on itself.
Then, when the dust settles on the November election, the next Legislature should do what should have been done a long time ago and create a public defender’s office that allows Maine to provide representation that lives up to the Constitution.
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