Mills and LePage chart different paths for Maine’s public defense
The next governor will play an important role in shaping Maine’s criminal defense as lawmakers consider whether to keep the state’s unique system or align with the rest of the country and employ public defenders.
Janet Mills, the incumbent, has personal knowledge of whether or not Maine’s unique public defense system works. She represented people as a court-appointed attorney before becoming the first woman in the state to serve as attorney general.
His challenger Paul LePage, a businessman seeking a third nonconsecutive term as governor, has long supported Maine’s transition to a county-based public defender system.
Maine is the only state that does not employ public defenders. Instead, Maine’s Commission on Indigent Legal Services, or MCILS, hires private attorneys to represent adults and children accused of crimes or at risk of losing the right to raise their children.
The election comes as Maine’s public defense system is in crisis. Dozens of defense lawyers have temporarily or totally stopped accepting new judicial appointments in business, which threatens real lawyer denial in some counties. The courts are faced with a possible multi-year backlog of cases. And recent requests for a special session of the Legislative Assembly to approve emergency funding have gone unanswered.
“None of the governors has demonstrated any understanding of the magnitude of the crisis,” said James Howaniec, a Lewiston lawyer.
Pay for public defense
Mills and LePage have independently said they support people’s constitutional right to have an attorney and the state’s responsibility to pay for the defense of clients who cannot afford an attorney. Their gubernatorial terms, however, come with a mixed record of investing money in adequate defense of the poor.
“As someone who has defended low-income people in court, I believe that the constitutional right to counsel is the cornerstone of our justice system and I think we need to do a better job of providing services. legal matters, including providing representation and ensuring timely court hearings,” Mills said in a statement Thursday to the Maine Monitor. “No person in Maine should go without representation, and no one should languish waiting for their day in court.”
The first draft biennial state budget originates with the governor. It serves as a roadmap for legislators regarding the priorities of the administration.
The mills declined in 2020 and again in 2021 to include new initiatives to expand and improve MCILS staffing in the budgets it sent to legislators. He set up an uphill battle for lawmakers and advocates to secure more funding, which ultimately fell short of the two years the agency said it needed.
She eventually signed budgets that included additional ongoing funding for MCILS, which was able to hire additional staff and raise lawyers’ salaries. But he was not able to open a public defender’s officeeven if the office was backed by lawmakers two years in a row.
Mills then earmarked $4 million in the Maine Jobs and Recovery Plan to pay the fees of court-appointed attorneys as the state dealt with a backlog of cases from court closures during the pandemic. MCILS spent none of this money.
LePage also transferred money to MCILS in times of crisis. He transferred nearly $1 million at MCILS in 2012 when lawyers faced five weeks without a paycheck because the agency ran out of money before the end of the fiscal year.
MCILS began operating a year before LePage took office in January 2011. Its formation moved the training, supervision, and payment of defense attorneys from the discretion of judges to an autonomous state agency. Critics say the agency was chronically underfunded in its first decade.
“What happens with Mills – I don’t know if it’s different from LePage – but what happens with Mills is that MCILS is mostly ignored until they have to beg for funds extra every six months, it seems, because everyone wants the whole system to work, but if it’s not funded properly, it won’t work,” said Jeff Davidson, 51. , Washington County attorney.
Faced with a record shortage of lawyers accepting new cases for MCILS, commissioners last month sent a letter to Mills and legislative leaders to request a special session of the Legislative Assembly to add $13.3 million to the MCILS budget raise lawyers’ salaries from $80 to $150 an hour.
The commission submitted a proposal that would increase its budget to $62.1 million a year, open four public defender offices, and keep lawyers’ salaries at the proposed rate of $150 an hour.
The pay raise could attract some defense attorneys to MCILS because it would allow them to afford to do the job while running a private business, Davidson said.
With less than three weeks to go before the election, the Legislative Assembly is unlikely to convene soon to vote on funding for MCILS.
“New funding is likely warranted to better support the system, with the appropriate amount to be determined in conjunction with the Legislative Assembly,” Mills said in his statement to the Monitor. “However, I also want to make sure that the commission is doing everything in its power to recruit lawyers, especially new lawyers.”
Howaniec predicted Maine’s public defense system won’t last three months without a pay raise.
“It’s criminal that our elected leaders don’t have any sort of backup plan,” Howaniec said. “There has been a complete lack of leadership at all levels of government.”
A choice between public defenders and reducing barriers
Who should advocate for Maine adults and children accused of crimes or parents under investigation by child protective services, and what role the state should play in the employment or supervision of these lawyers, is a growing issue.
As governor, LePage proposed replacing the MCILS with a Public Defender’s Office that would employ and contract with defense attorneys.
When asked if LePage plans to relaunch the invoice and make it a priority in the 2023 legislative session if elected, a campaign spokeswoman said the administration would first focus on making Maine families able to afford groceries and fuel oil. , the school system, and new regulations on the state’s lobster industry.
“However, he strongly believes we need to move to a county-based public defender system and would support efforts to do so. Maine’s indigent legal system is in a constant state of crisis, and that is unpredictable for attorneys and defendants alike. For this reason, Governor LePage will continue to advocate for a public defender system,” said Lauren LePage, the candidate’s daughter and spokesperson.
A bipartisan group of lawmakers lobbied successfully include money to hire Maine’s top five public defenders this spring. Hiring is in progress. Mills said the jobs “are a step forward and a clear difference from my predecessor’s proposal.”
Mills criticized LePage’s proposal as “an office of public defender in name only”.
Mills said she supports lowering barriers to allow lawyers who have recently passed the bar exam to represent indigent defendants, especially in rural areas. She also encouraged the Judiciary Commission to “encourage attorneys in each law firm in Maine to designate members of the law firms to handle court cases.”
The courts must also “be part of the solution” and process cases faster to address the backlog, Mills said.
Tina Nadeau, a Portland attorney, warned against lowering standards for attorneys who do court-appointed work.
“The dabbling in the civilian world won’t fix anything,” Nadeau said at a recent commission meeting. “The state is represented by specialists, people who do exclusively criminal law. I know that’s not the reality in most states for the defense bar, but encouraging people to take on one of the two cases won’t reduce the backlog. This will certainly not guarantee effective representation for clients.
Lawyer warns of impending collapse
The next governor will inherit a class action lawsuit brought by people who received legal services under Maine’s unique public defense system. The ACLU of Maine alleged on their behalf that MCILS is ineffective in training, paying, or supervising court-appointed attorneys.
Settlement negotiations began Oct. 12, though it’s unclear if the ACLU and the attorney general’s office will reach an agreement on how to reform the state’s criminal defense system or if they will. will pursue costly litigation.
Davidson said Mills’ past legal experience doesn’t give her an advantage in handling the lawsuit because she hasn’t been “in the trenches” doing court-appointed work for some time.
He predicted that the issues leading to the ACLU’s lawsuit would worsen in the coming years with the risk of more litigation.
Some Washington County defendants are waiting weeks in jail to be appointed attorneys, and Maine is on the verge of not being able to provide attorneys for some people, Davidson said. The question will then be whether the courts will continue to hear the cases.
He doubted that Mills or LePage would be ready to chart a course through the collapse of MCILS.
“Either way, it’s going to be a fight for the beans while the system is about to collapse,” Davidson said. “That’s all they do — it’s count the beans up there. It’s just a fight for dollars instead of a fight for what they really, really should be doing.
The detour to avoid a crisis is proper funding, Davidson said.
“Everyone understands what the problem is. The problem is that currently we cannot provide adequate advice to the people to whom we are constitutionally required to do so, and the way the system needs to change is to fund it appropriately so that lawyers are willing to do this work. That’s it,” Davidson said. “Whether you do it through a public defender system or whether you do it through some kind of hybrid public defender, a personal appointment system, that’s really how you deal with it. But until it is properly funded, it will not be fixed.
Samantha Hogan reports on government accountability and the criminal justice system for The Maine Monitor. Contact her with other story ideas via email: [email protected]