A last minute push by state lawmakers has succeeded in securing money to hire Maine’s first public defenders.

Maine lawmakers plan to spend nearly $966,000 to 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 Maine Commission on Indigent Legal Services, or MCILS, which is responsible for providing “efficient, high-quality representation” to adult and juvenile criminal defendants who cannot afford to hire an attorney. 

Maine is currently the only state in the nation that employs no public defenders and instead relies on private lawyers appointed by the court to defend the state’s poor. Plans to hire five public defenders will change that long-standing designation.

“It’s helping us cover the areas of the state of Maine that do not have enough lawyers,” said Sen. Lisa Keim (R-Dixfield).

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. The crisis is “imminent” with MCILS already struggling to find lawyers for cases in Aroostook and Washington counties, he said.

“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 five public defenders are “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. 

“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,” said Rep. Thom Harnett (D-Gardiner), the House chair of the Judiciary Committee.

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 it would cost approximately $60 million annually for MCILS contract with court-appointed attorneys and 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 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 policy shift within MCILS, which has depended on court-appointed lawyers since it opened in 2010.

Some of the lawyers MCILS contracted with to represent the state’s poor during its first decade of operation had criminal convictions and histories of professional misconduct, a joint investigation published in 2020 by The Maine Monitor and ProPublica found. The agency also 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 news organizations later reported.

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 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 their 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 requires 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 healthcare costs that make court-appointed work — reimbursed at $80 an hour — financially difficult to run a law practice and live on, 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.

‘Goals without the resources’

MCILS has been criticized for not meeting Maine’s obligation to provide legal services to Maine’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, 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 mid-way 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.

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. 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, Kilgore said. But the lack of funding and support for MCILS is 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.