The U.S. Constitution says every American has the right to legal counsel when the stakes are high.
In practice, however, the 80 percent of defendants who cannot afford an attorney are often left to navigate an adversarial criminal justice system with little more than token representation. As a result, a central tenet of our system — that everyone is equal before the law — is thrown out the window.
That’s as true in most other states as much as it is true here in Maine. But the problems in Maine, as the only state with no public defender’s office, are unique. They are also in great need of repair.
The broad strokes of the problems — an underfunded system with little real oversight — have been known for some time. A report out last week, however, fleshes them out.
The report, conducted by the Sixth Amendment Center at the behest of the Maine Legislature, was handed over to the Judiciary Committee last week. It looked at indigent legal services in five counties — Androscoggin, Aroostook, Cumberland, Somerset and York — and outlined what is going wrong and how to fix it.
In Maine, the system is overseen by the Commission on Indigent Legal Services. Rather than a standing public defender’s office, the commission contracts with private attorneys who take cases at $60 an hour, except in Somerset County, which pays a fixed annual fee for indigent services to a consortium of lawyers.
Such a system, the report says, makes it difficult to predict and contain costs, and to adequately supervise attorneys.
Each of these problems is made worse by the staffing at the chronically underfunded commission — three employees handle nearly 600 attorneys working in 47 courthouses across the state.
The Sixth Amendment Center found that in this environment, many Mainers aren’t getting the legal representation guaranteed them in the Constitution, and taxpayers may be paying too much for an ineffective, unfair system.
The report found that the commission’s qualifications for attorneys are too lenient and its training and supervision too limited. It found that defendants often are pushed toward plea negotiations with prosecutors before they fully understand their rights, leading to improper guilty pleas.
The report said the system is too focused on moving cases through the system, leaving times in the legal process when a defendant is not represented and thus vulnerable to exploitation.
The lack of oversight means taxpayers can be exploited too. According to the report, 25 attorneys billed the commission in excess of 40 hours per week every week of the year in 2018. One attorney billed for an average of 88 hours a week for a year.
After reading thus far, the recommendations in the report shouldn’t be much of a surprise: Make sure defendants have representation throughout the legal process. Create stricter qualifications and increase training and oversight. Limit billable hours.
The report also suggests that Maine, as in other states, create a hybrid model, with a public defender’s office in Cumberland County — where there are a lot of cases — then later in Kennebec and Penobscot counties. The report also recommends a state appellate public defender’s office to guard against poor representation.
A bill now before the Legislature, L.D. 1067, would implement the recommendations, and lawmakers should move quickly to do so. Nothing less than the constitutional rights of Maine residents is at stake.
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