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Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.
Remember when the GOP wanted to fix indigent legal defense in Maine?
Last year, the ACLU of Maine sued the state alleging that criminal defendants’ constitutional right to legal counsel was being denied. Maine provides taxpayer-funded legal defense through the Maine Commission on Indigent Legal Services, known as MCILS. MCILS pays private lawyers to serve as counsel for those facing criminal charges who lack the means to pay.
It has been a problem since it was established in the waning days of the Baldacci administration. Prior to that, the judicial branch paid for private lawyers from their own budget to represent criminal defendants.
Having the courts pay lawyers to represent people before the courts is an awkward arrangement. Reform was the right answer.
Yet that reform has been — to put it charitably — imperfect. Which is what led the ACLU to file a lawsuit.
In order to try and resolve the matter, the advocacy group and lawyers representing the state tried to reach a settlement arrangement. And they did, until they didn’t.
When the two sides brought the deal forward to Superior Court Justice Michaela Murphy, she heard them out. Then she rejected it because it didn’t really solve the problem.
For all the legal machinations, the issue really boils down to math.
MCILS’ first year in operation cost the state around $10 million. That mess landed on the LePage administration, when the commission needed emergency funding year after year. LePage dipped into contingency funds to stretch the organization across the fiscal year finish line.
Yet the math never made much sense.
That is what led LePage to propose moving away from case-specific attorney appointments towards a public defender system, similar to those in nearly every other state and at the federal level as well. However, those public defenders (or their firms) would be contracted to provide a level of service rather than become full-time state employees.
Call it a public defense firm model. It isn’t that exotic. The state issues multi-year contracts all the time. They include highly technical services like engineering, often with some significant unknowns.
That model may not have generated any savings, but it could have provided budgetary certainty. In many ways, it would have been similar to hospitals. MaineCare pays quite a bit less for services than private insurance does; the latter subsidizes the former.
The minutiae of bookkeeping would become a problem for the contractor; the state would simply pay a fixed cost. Last fiscal year under the current system, MCILS staff paid more than 30,000 individual vouchers.
The bid package could have followed existing MCILS rules, with different case types worth a different number of “points.” A firm could bid to provide a certain number of “points” annually.
To try and get the best value for taxpayers, the bid process could pre-qualify bidders and go through an inverted Dutch auction.
Each individual criminal case needs to be dealt with on its own merits, but the law of large numbers is as applicable as any statute. A prudent bidder would work the averages.
The vendor would have a chance to re-bid their effort at the end of the contract if they felt the economics were off. Until then, they own the contract they won. And if there was a spike in indigent cases, a new bid could be issued to provide more capacity.
In her most recent budget, Gov. Janet Mills proposed spending around $36 million each year on indigent defense. To put that in perspective, MCILS asked for $62 million. The total proposed spending for the Maine Attorney General’s Office — including all their non-criminal work — was about $51 million in non-federal dollars every year.
If you do not like the public defense firm approach, fine. We are 13 years into a broken system with an ongoing lawsuit and a rejected settlement. It is time for the Legislature to choose a model, fund it, and get the problem solved.
