Maine is the only state in the nation that does not have a public defenders office. Instead, Maine uses a system of private attorneys who are paid an hourly rate to represent low-income defendants who cannot afford legal council.
The system is not serving defendants or Maine taxpayers well, according to a recent report. The report, and a threatened lawsuit by the Maine ACLU, has added urgency to ongoing consideration of a different type of system to ensure that low-income people accused of crimes have legal representation — a right afforded to all defendants by the U.S. Constitution.
It is clear that changes are necessary to ensure that criminal defendants have adequate representation and that taxpayers funds used for this purpose are properly spent. Further review and discussion are needed before it becomes clear whether improvements can be made within the current system, without creating a new bureaucratic entity, or whether Maine should follow the rest of the country with a formalized public defender system, which would provide for more accountability and oversight. A hybrid system is also an option.
The Sixth Amendment Center, the group that did the review of Maine’s indigent legal services, found that the current system lacks safeguards to ensure quality legal representation and prudent financial oversight. These gaps in oversight have led to potential overbilling, inadequate performance by some attorneys and potential conflicts of interest, the center found.
The group said it had “serious concerns” about the Commission on Indigent Legal Services, which was formed in 2009 and is meant to ensure legal counsel for low-income people accused of crimes. The system’s staff of three oversees nearly 600 attorneys each year, who are paid $60 an hour and whose caseloads exceeded 30,000 in the 2018 fiscal year.
During that time, 25 attorneys billed roughly $125,000 — an amount equal to the $60 statutory cap multiplied by a 40-hour work week and 52 weeks in a year. A sheriff in the study estimated that 25 percent of assigned attorneys do not visit their clients in jail to prepare cases, including one lawyer, who billed $172,000 in a year and never recorded a jail visit.
Days after receiving the report in April, the Legislature’s oversight agency voted to investigate overbilling within the indigent legal defense system and other aspects of the Sixth Amendment Center report. The review by the Office of Program Evaluation and Government Accountability, which was requested by the Legislature’s Government Oversight Committee, is ongoing.
Now, the committee that oversees Maine’s indigent defense system is now suggesting that a move to a public defender system may make sense.
“In no other area of government would we think it appropriate to outsource a critical public function to private contractors with no supervision or accountability,” Alison Beyea, executive director of the American Civil Liberties Union of Maine, told the committee earlier this week. The organization is considering a lawsuit against the state if the situation is not remedied.
The state shouldn’t wait for that push to improve its indigent defense system.
“The report shows that we have to take action,” said Republican Sen. Lisa Kiem of Dixfield, a member of the Government Oversight Committee who has long advocated for changes to the indigent defense system.
“We need justice. We need a better system,” she told the BDN in an interview.
This isn’t the first time that changes have been proposed. Former Gov. Paul LePage twice called for changes to the system. Both were rejected by the Legislature.
In 2015, LePage proposed to move the state to a contract-based model where lawyers could work, perhaps full time, as attorneys for low-income clients. Somerset County uses such a system. The governor made the proposal again in 2017. Both failed to gain enough support in the Legislature.
The cost of a new system was a major reason for opposition. Cost concerns are likely to once again meet any recommended changes that may come from the current reviews.
Kiem acknowledged that an improved system may cost more money and that different models may be needed for different parts of the states. But, she emphasized, the status quo is not acceptable.
These are good guidelines that should frame the consideration of any proposals that come from the groups that are reviewing Maine’s current indigent defense system.