AUGUSTA, Maine — Gov. Paul LePage and attorneys who represent indigent defendants in Maine courts again are at odds over his proposal to dramatically change the way the system works.
The governor last year failed to gain legislative support for a bill that, if passed, would have replaced the Maine Commission for Indigent Legal Services with a contract system. This year, the governor offered a nearly identical proposal through his budget that would be put in place by July 1, 2018.
The idea is modeled on a contract system that has been used in Somerset County for decades because of a shortage of criminal defense lawyers in that county. None of those contracted lawyers supported last year’s bill.
Across the rest of the state, more than 500 individual lawyers are appointed to represent defendants by a judge from a list created by the commission. Lawyers must apply to the commission and be approved, based on experience and years in practice, to be put on the list.
This year’s budget proposal is expected to be opposed by the same groups that opposed LD 1433 last year — the commission, the Maine Association of Criminal Defense Lawyers, the Maine State Bar Association and individual lawyers.
Although LePage has flat funded the new office at $16.4 million, the same amount designated to the commission for the year July 1, 2017, to June 30, 2018, he said in his budget briefing that his plan would save money in future years by containing costs. His budget briefing did not include a specific amount of taxpayer dollars projected to be saved once the new office is in place.
“Maine should have a system that is respectful of Maine taxpayers and responsive to the needs of indigent defense clients,” LePage said in his budget briefing document. “The current system cannot continue as it has for the last five years: looking for supplemental budgets, no measure of attorney performance, and with little transparency into case outcomes.”
Under Maine law, indigent defendants facing jail time, juveniles charged with crimes, indigent parents who are subject to child protection proceedings, or individuals who are facing involuntary commitment for mental health services are entitled to legal representation paid for by the state.
LePage’s proposal would create the Office of the Public Defender, according to information in his budget briefing document. The public defender would be appointed by the governor and would be charged with hiring two assistants to help oversee operations.
Historically, the budget for indigent legal defense has been difficult to predict. Maine Supreme Judicial Court Chief Justice Leigh I. Saufley said in 2008 that the indigent defense fund “cannibalizes” the rest of the judiciary budget and forces the judicial branch to seek supplemental budget funds from the Legislature or to cut in other areas.
That inability to accurately predict how much money will be needed each year to pay for indigent legal services has not changed under the commission, LePage said in his budget briefing.
“Since the creation of the Maine Commission for Indigent Legal Services (MCILS) in 2011, the budget for this program increased over 54 percent, with an increase of 35 percent between FY15 and 16,” he said.
“In five of the last seven fiscal years, MCILS has needed supplemental funding to keep its budget balanced,” he said.
That does not take into account the raise in hourly rates to fund legal defenses from $50 to $60 per hour, according to John Pelletier, executive director of the commission. He also said operational costs could be more accurately predicted the longer that the commission is in operation and that more data from previous years can be collected.
The commission began operating in 2011 when it took over paying for indigent legal defense from the court system.
Opponents last year told the Judiciary Committee at a hearing on the bill that it was too early to scrap the current system. They also said that the current system allows attorneys who do indigent defense work to give more attention to clients because they are able to balance their caseloads by only taking certain types of cases rather than all they may be qualified to take.
Jeffrey Silverstein, a longtime criminal defense lawyer in Bangor, said earlier this year that he supports the current system but believes efficiencies could be found.
“There is a lack of uniformity in billing across the system,” he said. “For the purpose of reining in expenses, there could be a more systematic approach. For example, we could have certain standards on lesser tasks such as drafting a letter or reviewing one disc of discovery.”