State officials say they are struggling to keep up with calls for attorneys to represent the poor in criminal and family cases, even as Maine is taking gradual steps to shed its status as the only state without a public defense system.
Maine’s first five public defenders began working on criminal cases late last year, and Gov. Janet Mills proposed funding for 10 more attorneys last Wednesday. But Justin Andrus, who heads the agency that coordinates legal services in need, said adding a few public defenders isn’t a sustainable way to staff cases and won’t fix the court’s backlog.
“The reality is that five people can’t realistically solve the system-level problem,” said Andrus, the executive director of the Maine Commission on Indigent Legal Services (MCILS).
As Mills finalized her budget proposal last week, an email went out to lawyers that underscored the continuing lack of penniless clients. 27 adults, teenagers and parents needed lawyers on January 9 and the courts could not find anyone to represent them.
On the same day, only 64 attorneys were accepting adult criminal cases and 72 child protection attorneys statewide, according to MCILS. At its peak five years ago, MCILS had more than 400 contract attorneys.
MCILS was created in 2009 by the state Legislature to relieve judges of the responsibility for overseeing and paying defense attorneys who are hired to represent adults and children accused of a crime who cannot afford to hire their own attorney . Judges still decide whether an accused financially qualifies for an attorney at state expense and make the first appointment.
Judges and court clerks have been unable to find enough available lawyers to serve impoverished clients immediately since late last year, the Monitor reported. The courts have seen no improvement since then, said Barbara Cardone, spokeswoman for the state courts.
“It’s hard to measure whether it’s gotten worse or stayed the same, but we’re struggling to close the criminal procedure backlog without additional attorneys,” Cardone wrote in an email Thursday.
A bipartisan coalition of state legislators funded a Rural Defender Unit in 2022 that would send MCILS-employed public defenders to areas of the state where there are insufficient attorneys. Mills, a Democrat, on Wednesday announced an additional $3.6 million to add another 10 public defender jobs as part of her proposed $10.3 billion state budget.
The five public defenders took on most of the criminal cases that MCILS knew had no attorneys at the end of December 2022, but Andrus said the arrival of the attorneys was “accidental” timing and not a sustainable way to fill cases.
“For me, sustainable means that there will be a foreseeable period of time in which the available resources will be able to cope with the task of serving the available number of cases. We’ve created a small reservoir of capacity — and putting some of the case load into that capacity doesn’t imply sustainability unless capacity grows or system inputs go down or both,” Andrus said.
MP Stephen Moriarty, D-Cumberland, said he was also “extremely concerned” at the drop in solicitors taking on new assignments for needy cases.
The five public defenders are a start, but “that’s not enough to scratch the surface”.
To attract attorneys to take cases and also allow for a cost-of-living adjustment to run their businesses amid inflation, state Senator Lisa Keim, R-Dixfield, introduced an emergency bill to increase the salaries of private court judges appointed attorneys from $80 to $150 per hour. If passed by the legislature, the emergency provision would allow the increase to be implemented earlier than other bills.
A $473 million fuel bill bill passed by lawmakers cannibalized money that might have been available to fund their bill, Keim said.
“It takes money and we just spent it all,” Keim told The Maine Monitor.
Maine is required by the US Constitution to pay an attorney for adults charged with felonies and facing imprisonment who cannot afford to hire an attorney of their own.
MCILS has a current budget of $28.1 million per year. The commission proposed an annual budget of $62.1 million, with more than $33 million in new spending on public defense offices, more staff, an internship program and student loan reductions for contract attorneys.
The governor’s budget proposal included $17 million in new spending — just over half of what MCILS was seeking — to create a tiered wages plan based on case complexity and add public defender positions. Lawmakers will work on the budget that will guide government spending over the next two years.
Cardone said the judiciary is waiting to see when the legislature will address the court’s resource needs. She pointed to the governor’s proposed budget, the legislation and comments by spokeswoman Rachel Talbot-Ross, D-Portland, on Maine Public that supporting access to justice is a top priority.
“Ensuring that people have access to justice and that our courts have the safety and security and the capacity to deal with this incredible backlog – that’s what we will achieve. I have no doubt that we will get there, and soon,” Talbot-Ross said during the Maine Calling appearance.
Maine ACLU policy director Meagan Sway said the legislature must give full consideration to all issues.
“It requires a systemic approach and it requires addressing not just the attorney shortage and the way we appoint attorneys. It requires looking at the number of cases. It requires examining the right to a speedy trial and whether that is available to Maine citizens — and it isn’t,” Sway said.
A decision by the Maine Supreme Judicial Court on the right to a speedy trial is also pending.
Attorneys from the ACLU of Maine and MCILS filed amicus briefs in support of changing the state legal review when a defendant’s right to a speedy trial has been violated. Judges heard arguments in Dennis Winchester v. the State of Maine in October and have yet to issue a written decision. This could have a significant impact on backlogged criminal proceedings.
Andrus said he fears some people in government and the courts expect the five public defenders will fix more than they reasonably can.
There are also gaps in coverage that the new public defenders can provide. None of the attorneys have the training or experience to work on child protection cases and provide legal counsel to parents accused of child abuse or neglect, Andrus said.
“I am deeply concerned that there is … pressure to let them take on more cases than is appropriate, and I intend to do my best to counteract that pressure so they can do their job, which is to continue to focus on the client.” to focus,” Andrus said.
This story was originally published by The Maine monitor, a nonprofit and nonpartisan news organization. To get regular reporting from the monitorSign up for a free account monitor newsletter here.
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