Investigating the Only State Without Public Defenders
Until this week, Maine was the only state that had no public defenders. But a last-minute push by state lawmakers has succeeded in securing money to hire Maine’s first public defenders. Now it will have five.
The decision, which will cost Maine lawmakers nearly $966,000, is a small first step for a state that The Maine Monitor and ProPublica found had regularly contracted private attorneys with criminal convictions and histories of professional misconduct to represent the state’s poor. The investigation also found that the Maine Commission on Indigent Legal Services, or MCILS, routinely failed to enforce its own rules and allowed the courts to assign 2,000 serious criminal cases to attorneys who were not eligible because they had too little experience or had not applied to work on complex cases.
The new funding, which is a far cry from the tens of millions of dollars the MCILS’ director estimates is needed to overhaul the system, will establish a “rural public defender unit” to travel to courts across the state and provide direct legal representation to defendants who cannot afford to hire their own lawyer. The five public defenders will be employees of the MCILS, which is responsible for providing “efficient, high-quality representation” to adult and juvenile criminal defendants who cannot afford to hire an attorney.
“It’s helping us cover the areas of the state of Maine that do not have enough lawyers,” said Republican state Sen. Lisa Keim.
Maine’s rural counties are staring down a looming crisis of not being able to find qualified attorneys for every indigent person that needs one, said MCILS Executive Director Justin Andrus, who added that that crisis is “imminent” in certain counties.
“The rural public defender program will prolong our ability to staff cases, assuming we’re able to implement it before we reach a crisis,” Andrus said. The addition of five public defenders is “not a solution, it’s a patch,” he added. MCILS will eventually need an estimated $51 million to open public defender offices in all 16 counties, according to Andrus.
MCILS was left out of the state’s $1.2 billion supplemental budget that lawmakers passed and Gov. Janet Mills signed last week. The legislative Democratic and Republican caucuses agreed on Monday to split the cost of hiring the public defenders for a much lower $1.2 million. The bill will go to Mills, who intends to sign it, according to her spokesman Lindsay Crete.
State Rep. Thom Harnett, the House chair of the Judiciary Committee, said: “Maine is the only state in the country that does not have a public defender office. That’s a problem. And this is a small but significant first step in addressing that because this group of five attorneys would be state employees and would be providing public defender services to indigent defendants. I don’t think the significance can be overblown.”
Public Defenders for Maine
Each county in Maine has a caseload that can support a public defender office, according to an ongoing analysis of historic caseloads handled by MCILS, Andrus said. He estimates that the total cost to pursue his vision would be approximately $60 million annually, which would allow MCILS both to contract with court-appointed attorneys and to employ public defenders in 16 offices to handle the county’s criminal, child protection and juvenile cases.
The estimate is based on a public defender office in 16 jurisdictions each staffed by 22 people including 10 lawyers, four investigators, four social workers, three paralegals and a supervisor to align with national best practices for supervision and support workers, Andrus said.
“I want a public defender office, which to me is that unit of 22 people, in every county,” Andrus told The Maine Monitor.
His announcement that he wants a broader public defender system marks a significant shift in perspective within MCILS, which has depended on court-appointed lawyers since it opened in 2010. Public defenders who are state employees will allow MCILS to direct attorneys to work on cases and supervise that work more easily, Andrus said. Even if Andrus gets the broader system that he wants, it would include both public defenders and private court-appointed lawyers.
Andrus’ opinion about the need for public defenders is not universally shared by the seven commissioners who oversee the state agency. Some of the nearly 300 defense lawyers who currently contract with MCILS to provide legal service also say that they will not leave their private law firms to participate in a public defender system.
Josh Tardy, the chairman of the commission, said he is supportive of having a dialogue about Andrus’ idea to add more public defender offices to supplement the work of court-appointed lawyers. The cost will need further discussion, he said.
For now the rural public defender unit is an opportunity to demonstrate its utility for MCILS, he said.
“It is a chance for the policymakers to see how a public defender model — and that’s a term that is very loosely defined — but how commission-employed attorneys can do and what they can do to move the needle with our overall mission,” Tardy said.
A public defender system is not a solution on its own. Many states have public defenders who are working for underfunded offices and are overburdened with cases. But the looming threat that MCILS may not be able to provide lawyers in every case is driving some critics of Maine’s public defense system to push for change.
A survey of Maine’s attorneys shows they are aging and closing law firms to retire, Andrus said. Younger attorneys are burdened with student loan debt and health care costs that make it financially difficult to take on court-appointed work — reimbursed at $80 an hour — while running a law office and also making a living, he said.
“To reasonably ensure that we can always staff a case in the future, MCILS requires the ability to tell an employee, ‘You are going to this place tomorrow to do this case,’” Andrus said.
Defendant Rights at Risk
MCILS has been criticized for not meeting Maine’s obligation to provide legal services to the state’s poor, but lawyers say the government is setting goals without providing the resources to achieve them.
The Sixth Amendment Center, which was hired by the Legislature to review the state’s indigent defense system, reported in April 2019 that MCILS could not reasonably oversee the attorneys the agency contracted with and that the state’s criminal docket was advancing at the expense of defendants’ constitutional rights. A report by Maine’s government accountability office later found serious problems with financial management of the state agency in November 2020.
Andrus and commissioners have worked for the past year and a half to bring MCILS into compliance with its own rules and proposed caseload limits, and to create an auditing procedure for lawyer billing and a supervision regiment to more closely monitor attorneys’ work on cases. None of the proposals are final.
Lawyers who accept court appointments to cases have had a mix of reactions to the proposals. At least one attorney said the caseload limits could prevent problems seen in other states where lawyers are assigned exorbitant caseloads by the courts. Other lawyers said they would hit the caseload limit midway through the year and leave counties that are already short on lawyers even more short-staffed.
MCILS needs an estimated 270 full-time lawyers to cover its annual pre-pandemic caseload at the proposed limits, Andrus said. That is roughly the number of attorneys currently contracted with MCILS to provide court-appointed legal services, though many also work on retained cases and practice other kinds of law.
The governor’s office said that MCILS needed to perform better oversight of attorneys before providing the agency with more resources. Andrus has not received instructions directly from the governor since the spring of 2021 about what still needs to change.
“I understood last year from every front that the objection to increasing our funding generally related to whether that was a worthwhile investment,” Andrus said.
Commissioners asked for $35.4 million in 2020 to open two public defender offices, raise attorney wages and hire employees for MCILS. Lawmakers voted to give MCILS $21.8 million in 2021, but the state’s appropriations committee ultimately only agreed to provide $18.5 million to the agency — which did not include any money for public defenders. Despite Andrus articulating to lawmakers that the agency still needed all the funding it asked for, MCILS did not get the remainder of the money.
Taylor Kilgore, who runs her own law firm in Turner and accepts court appointments to defend parents in child protection matters through MCILS, said it is frustrating that lawmakers and the governor do not see the agency as worthy of fully investing in. She complained that they aren’t providing alternative solutions to the ones Andrus is putting forward.
“I get really frustrated when I don’t understand what the Legislature expects MCILS to do without these resources. How can they reach this goal without the resources?” Kilgore said.
The message being sent is that MCILS needs to be punished for its past, Kilgore said. But the lack of funding and support for MCILS is only punishing lawyers working with the commission, she said.
Kilgore went without being paid for several months in 2017 when MCILS ran out of money because it was insufficiently funded by the Legislature. Her husband recalls asking Mills while she was campaigning for governor about funding for MCILS and how she planned to fix it.
“She went on and on and gushed to him about how she understood how it was wrong and that she was going to be that person who could listen. Her actions, at this point, don’t seem to be matching that sentiment,” Kilgore said.
Mills, approached for this story, did not respond to this critique; her office instead pointed to state budgets she had previously signed expanding funding to MCILS.