The LePage administration has done more to properly fund indigent legal services than any administration in recent memory. It has done everything from using its emergency powers to close the budget gap last year to proposing the largest-ever increase in the Maine Commission on Indigent Legal Services budget in the next biennial budget. Clearly the LePage administration has demonstrated its commitment to properly funding indigent legal services.
The administration is absolutely correct when it suggests in Michael Cianchette’s Jan. 30 OpEd piece, “ What LePage has done, will do to ensure fair compensation of defense attorneys,” that the proper way to evaluate the rate paid to assigned counsel in Maine is to compare it to the amount spent on prosecutors in Maine. In fact, experts on the subject agree. The American Bar Association’s “Ten Principles of a Public Defense Delivery System” states, “There should be parity of workload, salaries and other resources (such as benefits, technology, facilities, legal research, support staff, paralegals, investigators, and access to forensic services and experts) between prosecution and public defense.”
Given the administration’s agreement with the parity standard, it was interesting that the article never answered the question. How do Maine’s expenditures on prosecutor salaries, facilities, support staff, technology and other overhead compare with the rate paid to assigned counsel? That comparison shows the rate paid to assigned counsel is far below anything that could be called parity.
First, look at the salaries. The administration says that a new assistant district attorney “makes” $45,000 a year. However, that number is incomplete as it does not include the tens of thousands of dollars in benefits and insurance. Additionally, as Maine pays all assigned counsel one rate, we should be comparing the average cost of a prosecutor to the “average” paid to assigned counsel. When you include benefits and insurance, according to the 2012-13 general fund biennial budget, the state spent $9,239,781 for 83 district attorney and assistant district attorney positions. That is an average of $111,000 per position.
Next, look at rent, staff and overhead. Unlike prosecutors, assigned counsel must pay for these things out of the rate they receive. For prosecutors, this overhead is paid either by the state for attorneys general or the counties for district attorneys. The state spent approximately $1.89 million on the 17 attorneys in the Cumberland County district attorney’s office, and the county spent an additional $1,436,310. The county funding includes the salaries for 23 full-time and six part-time support personnel, computers and other overhead. That is a total of more than $3.3 million for 17 attorneys or an average of more than $195,000 per attorney.
To determine the equivalent hourly rate for a prosecutor, simply divide the $195,000 by the billable hours for the year. Assuming 2,000 billable hours per year (40 billable hours per week with two weeks vacation) you get an hourly rate of $97.90 per hour. In other words, in order to generate enough revenue to fund the budget to run the district attorney’s office, those 17 attorneys would need to “bill” at a rate of $97.90 per hour. Starting July 1, 2013, the rate paid for indigent legal services will only be $70 per hour. At $70, the Cumberland County district attorney’s office would have to cut its non-attorney budget by almost a million dollars, more than 60 percent.
While there are other ways to look at the rate increase, they fail to compare apples to apples in the same way that the administration’s parity standard does. It is easy to say that the new $70 rate fails to keep pace with inflation, especially since it was supposed to have been raised to $60, not $50, to keep pace with inflation in 1999. It may be accurate to argue that the $5 increase built into the administration’s budget is not a 10 percent raise but rather an annual increase of less than 0.7 percent over the last 15 years. It’s easy to point out that it costs $100 an hour just to maintain an office in Bangor. And it may be tempting to adopt all the work that was done by the federal government in determining that $125 per hour was the appropriate rate to compensate attorneys defending the indigent in federal cases in Maine.
But a fair system is a balanced system and one that achieves balance between the defense and the prosecution in Maine. The administration’s parity standard, taken to its logical conclusion, would lead to that balance.
Let us be clear. Prosecutors in Maine are overworked and underpaid. They run their offices on very tight budgets. But no matter how you do the math, the $70 per hour set by the Maine Commission on Indigent Legal Services is, at best, a measured step toward achieving a balanced and fair system for Maine.
Robert J. Ruffner is director of the Maine Indigent Defense Center, based in Portland.