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The commission that oversees legal services for criminal defendants who can’t afford their own lawyers has again made a plea for the state to remake and better fund its broken system of attorneys for low-income defendants. At a meeting Monday, the commission recommended that the state spend more than $62 million next year – more than double what is currently allocated – to rebuild the system.
That’s a hefty price tag, especially after a boost in the commission’s funding in the state budget passed earlier this year. Yet, the current system is clearly inadequate, harming defendants and taxpayers. So state lawmakers, the commission and advocates need to look for innovative solutions – not all of which require more money – with a heightened sense of urgency.
Maine is the only state that has not had some version of a public defender system, where lawyers are state employees. Instead the state contracts with private lawyers, through Maine Commission on Indigent Legal Services, to provide legal representation for people who cannot afford it. Increasingly, the commission can’t find enough lawyers to do this work, in part because of what it is able to pay them, but also because of the shrinking ranks of lawyers in rural parts of the state.
At its peak in 2020, there were 420 lawyers available to the commission. In June 2021, there were 306 lawyers actively accepting cases. There are currently 185 lawyers accepting cases.
This, coupled with significant backlogs in the state’s court system – especially at the county level – has created a dysfunctional criminal defense system.
Also on Monday, the commission said, for the first time, that 10 defendants in Aroostook County didn’t have lawyers and that the courts haven’t been able to find qualified attorneys to represent them.
It all adds up to an arrangement that can deprive defendants of their rights to a speedy and fair trial, while also potentially disrupting their lives, jobs and relationships with family members. The system also costs taxpayers increasing sums to keep people in jail for extended periods of time while they await court dates.
Worst of all, the system may run afoul of the state and federal constitutions’ provisions that require adequate legal representation and speedy trials, something the Maine Supreme Judicial Court is currently considering in a case that is before it.
“Every day, we’re in a danger zone,” commission Chair Josh Tardy told the Bangor Daily News editorial board.
He acknowledged that the commission’s recommendations – and its “significant” price tag – may mean that other options need to be considered. These include a renewed effort to recruit more lawyers and law firms to participate in the program and consideration of expanding the hiring of public defenders, if the first round is successful.
Earlier this year, lawmakers allocated nearly $1 million to hire Maine’s first five full-time public defenders, which the state is in the early stages of hiring. The commission on Monday suggested hiring another two such defenders.
Commissioners also recommended on Monday that payments to private lawyers who take on these cases be increased to $150 an hour. The state budget increased funding for the commission and its work, including raising rates for lawyers who participate in the program from $60 to $80 an hour.
Gov. Janet Mills, in her Jobs and Recovery Plan, calls for more than $4.5 million in federal recovery funds to be allocated to the commission, along with funds to help courts with the backlog.
“The governor will take into consideration the commission’s vote and consider additional potential solutions, such as a recruitment campaign, and she will continue to work with the Legislature to improve the delivery of legal services to low-income people in Maine to ensure their constitutional right to counsel – a right that she values and has delivered herself, as someone who has repeatedly represented low-income clients throughout her own career,” the governor’s spokesperson Lindsay Crete said in a statement to the BDN editorial board.
We are encouraged to see so much attention focused on this issue, which remains urgent as court backlogs and lawyer shortages mean some defendants are spending too much time in jail awaiting court proceedings.
When lawmakers convene for the next legislative session, addressing ongoing shortcomings in the state’s criminal justice system – for defendants, victims and taxpayers – must be a priority. They’ll need to bring some creative potential solutions to Augusta.
