After multiple emergency funding requests for Maine’s independent defense system, the governor’s budget proposal includes $17 million to the agency’s biannual budget to boost pay and hire more public defenders.
But some say the proposal doesn’t go far enough to meet the state’s constitutional obligation to provide legal aid to the poor.
Gov. Janet Mills proposes spending $13.2 million on a tiered reimbursement system, with attorneys paid from $80 to $150 an hour depending on the type and complexity of their cases. Mills also proposes spending $3.6 million to hire 10 new public defenders on the top of the five Maine hired last year.
That still pales in comparison to the $62 million requested last summer by the Maine Commission on Indigent Legal Services, which called for raising attorney pay from $80 to $150 an hour across the board and adding dozens more public defense positions.
Executive Director Justin Andrus said Tuesday he was pleased to see new funding for MCILS in the governor’s budget. However, he said the $62 million budget is “what’s necessary.”
the larger proposal would set up a more robust public defender’s system like those in other states, with four offices and more than 40 public defense attorneys and support staff such as investigators, social workers and paralegals. Two of those offices would handle yet-to-be-tried criminal defendants in Aroostook County and a central county, likely Androscoggin or Kennebec. A third office would handle appeals, while a fourth would handle post-conviction reviews.
Until late last year, Maine was the only state that didn’t employ public defenders, and it still depended heavily on private attorneys who accepted independent assignments.
Mills has not signaled support for MCILS’s proposal, and in an interview with Maine Public just before she released her budget recommendations, the governor expressed reluctance to increase the minimum reimbursement rates for lawyers representing independent clients.
During an earlier interview in DecemberMills said there were “systematic changes” she would like to see the commission implement first, to recruit more attorneys.
“I’m aware of the need, the constitutional need, the societal need,” said Mills, who said she has 14 years of experience representing independent clients. “People should never be left without counsel for days at a time, whether they’re in jail, or not in jail, at a critical time in their lives.”
Mills instead focused on the professional opportunity such work offers budding lawyers rather than on the state’s constitutional obligations.
“It not only provides a social service and a constitutional service – a public service – it also gets people in the courtroom. And it provides an experience that you’re not going to get otherwise to become a good lawyer,” Mills said.
As MCILS’s roster of defense attorneys plummeted last year, commission members urged state leaders in October to call a special session to raise the hourly pay. Mills and others instead asked whether the commission was doing all it could to recruit new attorneys.
Tina Nadeau, executive director for the Maine Association of Criminal Defense Lawyers, said Tuesday the $150 hourly rate should be the starting point, not the cap. Nadeau was among many advocating for the emergency increase.
“We need an increase in attorney pay that can be implemented immediately – because we are in a crisis and time is of the utmost importance to get attorneys back on the rosters and accepting new clients,” Nadeau said Tuesday. “In that regard, a tiered system would be a non-starter.”
One bill from Rep. Lisa Keim, R-Dixfield would immediately raise pay for attorneys representing independent clients to $150 an hour. The bill has been referred to the Judiciary Committee.
Andrus told the committee Tuesday that the $150 rate came from studying what prosecutors earn, and cost, in Maine – not just their salaries, but other costs as well.
“This is not a wage to the attorneys,” Andrus said. Rather, it’s a gross reimbursement rate for operating a law office, paying staff and paying themselves.
As of Tuesday, Andrus said, there were 147 attorneys representing independent clients beyond their first appearances in court, and only 62 of these were willing to accept new criminal cases. There are portions of the state where there are no attorneys taking independent cases.
This time last year, MCILS was beginning to report very few attorneys accepting new cases in Aroostook and Washington counties. Now it’s often impossible to guarantee the availability of an attorney in southern Maine, Andrus said.
“It’s no longer the case that there’s a safe core, in the body of the state,” Andrus said. “The rosters’ availability flickers from day to day.”
In Kennebec County on Tuesday, there were no attorneys accepting new criminal cases for any crimes other than murder. Recently, there have been instances in Portland and York County when only one local attorney was available to accept new violent felony cases.
“We’re not OK anywhere,” Andrus said.
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