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Gov. Janet Mills recently signed a bill passed by lawmakers to open two new public defender offices in Maine, serving Aroostook, Penobscot and Piscataquis counties. Lawmakers last year also increased the hourly pay for attorneys that take on the cases of low-income defendants.
Despite efforts like these, the number of defendants without representation continues to grow.
Last month, the Commission on Indigent Legal Defense counted more than 750 criminal cases where defendants lacked lawyers.
That’s a massive jump from the 74 cases counted by the commission in October, which was already a problem.
The result is often defendants spending time in jail or more time in jail while they await court dates, often for crimes that may not require incarceration if they are ultimately found guilty.
This points once again to the need to speed up efforts to build up a full network of public defenders in Maine, which had been the only state without such a system. At the same time, elected leaders are right to also look for ways to strengthen the indigent defense program until it can be replaced by a robust number of public defenders.
“I really think the Legislature is going to have to wake up and realize that this is something that needs action, like now,” a lawyer Mitchel Roberge told the Bangor Daily News. “Something really, really significant has to be done now, that’s going to guarantee that people are immediately coming on board to take cases.”
Like others, he noted that the fees paid to lawyers that take on these cases are too low. The Legislature recently raised the hourly rate to $150 to encourage more lawyers to work with low-income clients. But when attorneys can make $300 or more per hour in private practice, this is not enough of an incentive to encourage more lawyers to do this work, Roberge said.
“The question really for us is, ‘Why would somebody want to practice an indigent criminal defense unless you have a passion for it?’” Roberge said. “There’s really no reason that you would want to get involved in it. You’re making half of what you could charge otherwise.”
As Joan Fortin, the CEO of Bernstein Shur, explained to the BDN editorial board last year, the landscape of lawyering is changing. Years ago, many lawyers wanted to be on their own or part of a small firm. These lawyers formed the backbone of the state’s indigent defense system.
Increasingly, lawyers value firms where they have access to more training, benefits and colleagues. Therefore, a system that relies on independent lawyers or lawyers from small firms to take on these cases is outdated, Fortin, who has long been involved in attorney recruitment at Bernstein Shur, said in September.
In addition, Fortin noted, the lawyers at her firm are not well versed in criminal and child welfare law, although the firm has committed to supporting lawyers who want to be rostered and trained to help with these cases, in addition to the pro bono work that the firm’s lawyers already do.
A former Maine Superior Court judge, Paul Fritzsche, and his son, Tom Fritzche, the head of Pine Tree Legal Assistance, in a BDN column last week made a persuasive case for more support for low-income Mainers involved in civil litigation as well. A lack of representation in such cases can have long lasting negative impacts.
In addition to the shortage of attorneys, there is a shortage of prosecutors and court officials that also contribute to the backlog of cases across the state’s court system.
Mills and legislators have devoted a significant amount of attention and financial resources to many aspects of Maine’s legal system. But to ensure that Maine meets its constitutional obligations, that work is far from over.
