A joint committee of lawmakers has endorsed adding at least $21 million to the budget for legal services for Maine’s poor in defiance of Gov. Janet Mills, who said she would not increase funding for the state’s public defense office until it demonstrated more accountability.
The bipartisan decision Tuesday, March 16 to support additional money for the Maine Commission on Indigent Legal Services, or MCILS, is seen by many as a key step to reforming how Maine provides lawyers to poor defendants. But the plan faces an uphill battle in the state budget committee and a possible veto by the governor.
Maine is the only state that relies exclusively on private lawyers to represent adults and juveniles facing criminal charges or other legal matters when the person cannot afford to hire their own attorney.
MCILS has a troubled history of contracting attorneys with criminal convictions and records of professional misconduct, a joint investigation by The Maine Monitor and ProPublica found last year. Mills appointed eight commissioners to oversee the state agency. They recommended $35.4 million of reforms last October, but Mills did not support any of the initiatives in the budget she submitted to the Legislature in January.
The commission could make substantial improvements with the money recommended by the Judiciary Committee on Tuesday, March 16, said Justin Andrus, who joined MCILS as the interim executive director in January. But the commissioners believe their entire budget is needed.
“Does it fix it all — no,” Andrus said. “If the question is, is it a worthwhile endeavor toward real progress? The answer is absolutely.”
Lawmakers unanimously recommend allocating over $5.7 million a year to increase the compensation rate for attorneys from $60 to $80 an hour. Defense attorneys were last given a raise in July 2015 when the rate increased by $5 an hour.
Legislators also agreed on expanding the commission’s staff. There are currently four people who oversee the statewide public defense system. Three clusters of hiring would bring on 14 attorneys and support staff to train and supervise contracted attorneys, audit attorney billing and manage administrative tasks at an annual cost of at least $1.5 million.
The committee’s decision was necessary to meet the state’s obligation to represent the poor, said Sen. Anne Carney (D-Cape Elizabeth).
But lawmakers could not find common ground to unanimously finance the opening of the state’s first trial and appellate public defender offices. Lawmakers were divided on when to fund a trial-level public defender office. And the majority agreed to fund a pared-down proposal for a 20-person appellate office to four state employees dedicated to appeals and post-conviction reviews.
As chairwoman of the committee and a lawyer who has worked on civil appeals, Carney said she was comfortable with where the committee members landed Tuesday, March 16, including their significant rollback of the appellate public defender proposal.
“The vote that we made ultimately was a compromise,” Carney said of the appellate office.
She did not know how the Appropriations and Financial Affairs Committee or governor would eventually react to the multi-million dollar proposal. But she said the committee’s votes — some unanimous and bipartisan — were the most persuasive argument it could make as a policy committee to support the reforms.
An independent evaluation of Maine’s indigent defense system by the Sixth Amendment Center in 2018 was a “scathing” rebuke of the state’s system, said Rep. Thom Harnett (D-Gardiner), chair of the Judiciary Committee and a retired attorney. The report documented that criminal defendants routinely plead guilty without speaking to a lawyer and attorneys are not always meeting with incarcerated clients. Press reports have also shown that the commission is unable to monitor or train the more than 300 attorneys it contracts, he said.
“That’s a really dangerous way to operate,” Harnett said.
The Sixth Amendment Center recommended Maine open public defender offices in areas of the state with high caseloads to alleviate some supervision and financial control problems.
District Attorney Maeghan Maloney supports the plan to open a public defender office in her district of Kennebec County. Defendants show up at her office in tears believing they are going to immediately be taken to jail when they appear in court, she told The Maine Monitor.
Maloney said she does not redirect any defendants to MCILS, because it would be an “impossible task” for its two staff attorneys to field questions on every case.
“I would far, far prefer to be able to say to everyone prior to their arraignment date, ‘Here’s the number for the public defender’s office at Kennebec County. Please call that number,’ ” Maloney said. “If I could do that, I would do it 100 percent of the time.”
Lawmakers on the Judiciary Committee were divided on the timing of creating a public defender office. At least seven of the members present supported funding the office in the next two-year budget but were split on whether the commission could logistically hire and begin accepting cases starting July 1.
If approved, the trial-level public defender office would cost $2.1 million a year on top of the $21 million of proposed additional spending.
The four Republican members of the committee present on Tuesday voted against the public defender office. Sen. Lisa Keim (R-Dixifield) said she did see public defenders being a part of Maine’s future, but was placing her votes with the priorities she believed could be funded this year.
“I don’t believe there’s any chance it’s going to get funded,” Keim said. “The governor is clearly not in favor, anyway.”
Keim said she wished committee members had shown more restraint. However, MCILS is the only state agency she plans to vote to increase positions at this session, because it is underfunded and insufficiently staffed, she said.
The Maine State Bar Association opposed the governor’s plan to flat-fund the commission in the next two-year budget. The professional organization asked lawmakers to commit the financial resources to attract, retain, train and oversee qualified attorneys.
“The governor’s highest priority in this area is ensuring there’s improvement in the financial accountability,” said Jerry Reid, chief counsel to the governor, during brief comments to the Judiciary Committee earlier this month.
Reid said Mills’ position was MCILS should use existing surpluses and savings from court closures during the pandemic to pay for a few additional staff members to work on known problems. The administration is encouraged by reforms undertaken by the commission in the past year, but Mills does not support adding money to the commission’s budget to open any proposed public defender offices at this time, he said.
“She thinks that’s premature,” Reid said.
The commission did not spend $2.6 million of its last budget, said interim director Andrus. Criminal jury trials were significantly reduced and only limited court proceedings continued during the pandemic. As the backlog of cases is cleared, MCILS will have to pay attorneys for their work, he said.
“We’re going to have a shortage, not a surplus,” Andrus said.
Rep. Jeffrey Evangelos (I-Friendship) voiced the loudest opposition to the committee not going further and dedicating even more money to MCILS. He was the sole dissenting vote on cuts to the appellate office and would have added $2.6 million a year to fully staff the appeals office as proposed by the commission.
“It’s peanuts on an $8 billion budget and I don’t see anyone ever struggling like this funding the police,” Evangelos said.
MCILS paid an average of $641,000 a year to attorneys for appeal and post-conviction reviews in the past three fiscal years, according to an analysis by Andrus.
The actual cost has varied greatly year-to-year. In fiscal year 2018, costs exceeded $801,000. That year, MCILS paid $130,432 for a single post-conviction review — typically capped at $1,200 — that secured the early release of Anthony Sanborn, who was convicted of the 1989 murder of Jessica Briggs and sentenced to 70 years in prison.
“The current costs are artificially low,” Andrus said. “When we look at the incremental cost of public defender offices, we should be comparing those costs to the price of adequately resourced contract counsel, not to the artificially low status quo.”
MCILS is seeing too few appeals being filed, Andrus told the committee. An attorney separate from the defendant’s trial attorney should also be assigned to the appeal, he said.
Opening an appellate public defender would likely increase the number of appeals, said David Carroll, executive director of the Sixth Amendment Center. Lawyers are unlikely to explore allegations of ineffective assistance of counsel against themselves.
“Appellate defender offices tend to be a great check against whether the trial level is providing effective representation or not,” Carroll said.