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Two years ago, an assessment of the state’s system for providing constitutionally required defense to low-income Mainers found major shortcomings. Now, lawyers who provide these services are leaving the system, prompting fears that some cases won’t move forward in court.
The recently passed state budget includes funding to increase pay for lawyers who participate in the state’s indigent legal services program. The pay increase and increased staffing is welcome. However, the problems with Maine’s system go deeper than just funding. There is little oversight of lawyers who provide these defense services and they are not evaluated on how well they serve their clients, for example.
“We don’t have a system,” ACLU of Maine chief counsel Zach Heiden told the Bangor Daily News editorial board. “We have 400-plus independent contractors with a system to pay them.”
A more formalized system — with standards, feedback and training for lawyers who participate — is needed to ensure that low-income Mainers receive the legal defense services they are guaranteed under the U.S. and state constitutions.
Maine is the only state without some sort of a public defender system, where lawyers are state employees. Instead the state contracts with private lawyers, through Maine Commission on Indigent Legal Services, to provide legal representation for people who cannot afford it.
At its peak last year, there were 420 lawyers available to the commission. In late June, there were 306 lawyers actively accepting cases, the commission’s interim executive director, Justin Andrus, told the BDN.
Caseloads have also increased significantly over the past year, with a record 28,687 cases in the 2021 fiscal year. In June alone, the commission saw more than 2,500 cases, suggesting the pace is still accelerating as courts emerge from pandemic backlogs.
This has led to fears that some defendants won’t have representation when their court dates arrive.
“So far, we have successfully staffed every case that has been presented to us,” Andrus said. “If lawyers continue to withdraw, it is possible we will reach a day when we’re not able to do that.”
Problems in the system are not new. The system is not serving defendants or Maine taxpayers well, according to a 2019 report by the Sixth Amendment Center. The group’s report 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.
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.
A system of public defenders — attorneys who work for the state — is an attractive option, which most states already use. This would make public defenders more inline with prosecutors, who are employed by the government.
One drawback to such a system, in addition to the higher cost, is that the need for public defenders is uneven across the state, so hiring a defender for each county could mean that some lawyers are overworked while others handle few cases. Assigning public defenders a large territory could alleviate this problem.
A hybrid model of some state-funded public defenders and some private attorneys, as Massachusetts uses, is another option worth close scrutiny.
What shouldn’t be an option is making small changes around the edges of Maine’s indigent defense system. A big shift is needed. More funding will help. But higher standards, oversight and training are essential to ensure that low-income defendants receive the representation they are entitled to under the constitution.