June 19, 2018
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Don’t let Maine’s legal system become the domain of the wealthy

George Danby | BDN
George Danby | BDN
By Jim Howaniec, Special to the BDN

I have been practicing criminal defense law in Maine for nearly 30 years. During that time, the due process rights of criminal defendants have been eroded significantly. LD 1433, a bill pending in the Legislature, seeks to change the way indigent defense services are provided by creating the office of a public defender who will “contract” with private attorneys to provide legal services to the poor. The intent of the law is to save money. It is well-intentioned but will further reduce fundamental constitutional rights. It should be rejected.

In its 1963 landmark decision in Gideon v. Wainwright, the U.S. Supreme Court required states to provide legal representation to defendants who are unable to pay for their own attorneys. It is a legal principle that, for obvious reasons, has served our nation well: Not only the wealthy should be entitled to a fair legal process.

For many decades, criminal defense lawyers in Maine have been paid a minimal hourly rate to defend the poor. We receive less than half the hourly amount court-appointed lawyers receive in the federal system, and of course a small fraction of the $200 to $300 or more per hour that privately retained attorneys are charging in Maine.

The new legislation, if enacted, will require criminal defense attorneys to under-bid against each other for court-appointed cases by submitting contract proposals to the new public defender’s office. It will result in even lower hourly rates for lawyers doing criminal defense work in an already financially overstressed system. Fewer resources will be available to properly investigate criminal charges and zealously defend against them through trial.

Several years ago, the Legislature separated funding for indigent legal services out of the judicial budget and created the Maine Commission on Indigent Legal Services. This left funding for indigent legal services completely at the mercy of the governor and state Legislature without any involvement from the judicial branch. To their credit, Gov. Paul LePage and the Legislature have funded the commission fairly. Many in the Maine defense bar are concerned, however, that this new proposed law will change matters for the worse.

Criminal law has become much more complicated — and expensive — in recent decades. We deal with issues today that we did not see as recently as 10 or 15 years ago. Almost every criminal conviction carries serious “collateral consequences.” Being convicted of a crime can affect your ability to get a job or obtain student loans or have a driver’s license or possess a firearm or travel to another country or rent public housing. It can have severe immigration consequences. It can carry a mandatory minimum prison sentence. Parental rights may be affected.

More people face incarceration today than ever before. Our state jail system is on the verge of collapse. Pretrial bail orders are more severe. Judges routinely require $500 and $1,000 cash bails or more for simple misdemeanors. For many of Maine’s poor, it may as well be a million dollars. As a result, many in poverty are sitting in jail for weeks and months on misdemeanor charges or are pleading guilty to charges merely because they cannot come up with bail. I have an 80-year-old client who has been sitting in the Androscoggin County Jail for more than a year awaiting trial.

We have seen no similar push to save money by contracting out prosecution work. Maine Supreme Court Chief Justice Leigh Saufley should take an active role in ensuring that the criminal court system is fair. Prosecutors have local and state police personnel available 24 hours a day. They have full-time district attorneys with well-funded staffs, crime laboratories, forensics experts and many other resources. All of this is good; we want our state government to aggressively investigate and prosecute crimes. But we also need to ensure that basic civil liberties are protected and that innocent people are not convicted.

For the poor in this state, the lawyers rostered through the Maine Commission on Indigent Legal Services are about the only ones fighting to protect those basic human rights. It is a job that is not always popular with politicians and the public, but a vital defense bar is essential to a free society. Maine’s criminal defense lawyers provide high-quality services for very modest compensation. Our resources are bare bones. Eroding the system further by creating a system of criminal defense “contract” work will not make Maine a better place.

Jim Howaniec is a Lewiston attorney. He has served as an assistant attorney general and as mayor of Lewiston.

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