Investigating the Only State Without Public Defenders
This article was produced in partnership with The Maine Monitor, a former member of the ProPublica Local Reporting Network.
Update, July 19, 2021: Maine will spend an additional $18.5 million in the next two years to improve legal services for low-income residents. State lawmakers brokered a deal to add employees and increase contracted lawyers' pay while halting plans to open the state's first public defender office. Gov. Janet Mills let the reforms become law Thursday without her signature. Maine remains the only state without any public defenders.
In the 31 years since he opened his law practice on Lisbon Street in downtown Lewiston, Maine, Jim Howaniec has never been in a situation like the one he now faces. He has four murder cases awaiting trial, on top of 77 other cases he’s defending as a court-appointed lawyer for the state of Maine. In a normal year, he says, he has 40 to 50 public defense cases, and he has only handled four other murders since he opened his practice.
“It’s unbelievable. It’s almost ridiculous,” said Howaniec, a defense lawyer contracted by the state to represent indigent clients.
As courts reopen across Maine, defense lawyers are navigating a criminal docket unlike any they have experienced. Some lawyers are carrying loads of well over 100 cases and are being scheduled for more court appearances, sometimes in two courts at the same time. And shortages of defense lawyers accepting new cases have the system at a “breaking point,” Howaniec said.
A nearly complete stop to criminal trials last year contributed to a pileup of 26,600 felony and misdemeanor cases statewide as of May 2021 — an increase of more than 56% from just before the pandemic began, at the end of January 2020.
The pandemic stressed an already strained public defense system. The Maine Commission on Indigent Legal Services is on track this fiscal year to appoint attorneys to a record-high 28,000 cases, up from 27,000 last year, which includes juvenile cases and others not captured in court data. MCILS contracts with private lawyers to defend adults and juveniles against criminal charges and other legal matters when they cannot afford to hire their own attorneys. Maine is the only state that operates a public defense system that relies exclusively on private attorneys.
The commission anticipates a $4 million to $12 million budget shortfall, with the state potentially leaving itself unable to pay defense lawyers within the next two years as the courts clear the backlog of cases, according to an analysis by MCILS interim director Justin Andrus.
Late last year, Maine Gov. Janet Mills called for reform of MCILS after an investigation by The Maine Monitor and ProPublica found that executive director John Pelletier, who later resigned, regularly contracted attorneys with criminal convictions or histories of professional misconduct to represent the state’s poor.
But Mills has not called for an increase in the commission’s budget, citing a lack of accountability and fiscal shortfalls on the state level. Even as the commission has implemented sweeping changes to how it does business and as state revenue forecasts have improved, Mills has not budged.
For its part, the state legislature, which is scheduled to complete its work by mid-June, will be voting on a $21.8 million package to overhaul Maine’s defense system. If passed, it would be the state’s largest investment in public defense since the Legislature formed the agency 11 years ago. But critics say the proposal falls short of what is needed to make meaningful change.
Getting Mills on board with more funding for MCILS is a “work in progress,” said Josh Tardy, the commission chair. The governor has endorsed only an incremental change to the executive director’s salary and four temporary staff positions, on top of the commission’s current four full-time workers who manage most operations statewide.
Lindsay Crete, a spokesperson for the governor, said Mills is encouraged by Andrus’ leadership since he became director in January, and feels the commission is beginning to move in the right direction. But Mills does not plan to introduce more changes to the state budget at this time, and she could veto any money the Legislature ultimately adds, which would require a majority vote of lawmakers in both the state house and senate to overturn.
A Proposal With Pitfalls
The proposal before the Legislature comes more than two years after the Sixth Amendment Center, a nonprofit of public defense experts, alerted lawmakers to severe problems with MCILS’ management, training and financial oversight.
The legislation would enable MCILS to expand its auditing power and improve legal services to poor defendants. But it falls short of what the commission says it needs to make all the changes the governor and lawmakers are demanding. It adds six employees when commissioners said they need at least 14 people added to staff offices that are dedicated to supervising, training and auditing of lawyers.
David Carroll, the director of the Sixth Amendment Center, said he supports giving the commission and its director new power to subpoena witnesses and summon people to gather evidence for audits. He warned lawmakers that doing less could do harm and likely does not go far enough to fix MCILS’ problems.
Democrats and Republicans on the state judiciary committee have worked together on drafting a spending bill for MCILS, jettisoning any new funding that didn’t have unanimous support. To take effect immediately, the legislation must garner support of two-thirds of lawmakers in both houses of the Legislature.
Rep. Jeffrey Evangelos, the committee’s one Independent member, said the Democratic majorities in both chambers make it likely that the bills will become law, but lamented that it had taken the Legislature multiple years to reach this point and that the governor continues to resist adding money to the budget.
Alternatively, rather than passing a bill, lawmakers could increase funding for MCILS directly in the state’s two-year budget as they contemplate changes to the bare-bones spending plan they passed in March. The budget committee could add as much as $35.4 million, which is what MCILS asked for in October 2020, said Rep. Barbara Cardone, a Democrat who serves on the budget committee. She added that the Democratic caucus has discussed supporting more funding for MCILS.
A spokesperson for House Republicans said their caucus had not discussed MCILS funding and declined to comment.
The full $35.4 million package would almost double the budget of MCILS.
“I have always felt that the problems at MCILS, from however far back they stem, come from an underfunded system. They were being asked to do too much with too little,” Cardone said. “I don’t think anyone can make any headway on this until this is funded.”
At least 50 defense attorneys have temporarily or permanently stopped accepting court appointments this year, leaving 322 lawyers statewide working with MCILS, as of June 1. The agency has been able to meet its obligations to assign lawyers so far, Andrus said, but it’s getting increasingly difficult.
“I am deeply troubled by the threat implied by the increasing workload in the system when we have no way to increase the number of attorney participants,” Andrus said.
Lawmakers have before them a plan to add nearly $40,000 a year to the paychecks of lawyers whose practices consist of majority court-appointed work by increasing their pay rate by $20 an hour to $80 an hour. It would be their first raise in pay since 2015.
Experienced lawyers are paid too little to cover office overhead or make a profit from a case, and younger lawyers have student loan payments that are too high to allow them to sustain themselves on court-appointed work at the current pay rate of $60 an hour, said Howaniec, the Lewiston lawyer, who is 62 and approaching retirement.
Robert Ruffner, an attorney who does almost exclusively court-appointed work, said he stopped accepting new cases in March. In a typical year, he would not have more than two cases going to trial at a time. Now he is expected to have several cases ready at the same time. Having each court changing schedules and advancing a larger volume of cases to trial has filled him with a feeling of foreboding.
“The whole system isn’t ready” for this many cases, Ruffner said. “I don’t understand how the justice system thinks it’s going to push more cases through the exact same system that, if anything, is far more stressed than it was 18 months ago.”
Superior Court Chief Justice Robert Mullen said he is aware that reopening courts and scheduling cases in multiple counties at the same time creates a significant strain on lawyers. But he said it was time for prosecutors and defense lawyers to push many of the cases toward trial, in hopes that this prospect would lead to more settlements.
“You reach a tipping point,” Mullen said about the lawyers facing the prospect of so many trials. “If I’m reading off 262 cases — that was the original trial list in Somerset County — we’re not going to try 262 cases in the month of June. We’ll be lucky if we probably get seven.”
The ACLU has threatened to bring litigation if the state does not make substantial improvements to the training and supervision of its contracted lawyers. Zach Heiden, chief counsel of the ACLU of Maine, said in April that he saw no alternative to a lawsuit, after lawmakers passed a budget in March that continued to underfund MCILS. His opinion has not changed.
“There are counties in Maine with a crisis — with a shortage of qualified defense lawyers,” Heiden said.