The people who provide legal services to the poor could not be more clear: Maine won’t meet its constitutional obligation without major changes to the system.
Still, the Legislature wrapped up a $1.2 billion supplemental budget Wednesday that made no provision for indigent legal defense. If budgets are a statement of our values, what does this document say about ours?
The U.S. Constitution says that anyone accused of a crime has certain rights, which include the assistance of counsel for their defense. More than half a century ago, the Supreme Court said that means that if a defendant can’t afford a lawyer, the government has to pay for one. This is not a suggestion. It’s the law.
It’s a law that applies to all 50 states, but only Maine chooses to meet this responsibility entirely by assigning private lawyers to cases for hourly fees. The other 49 states have some form of a public defender’s office, staffed by public employees.
The training and supervision that public defenders receive are what’s missing from Maine’s system, according to the Sixth Amendment Center, a nonpartisan organization that was hired by the state to evaluate its system in 2019. In 2020, the state’s watchdog agency issued its own report, finding a lack of structure and oversight of attorneys assigned to cases.
These problems have not gotten better since then – in some ways, they have gotten worse.
According to a letter sent to legislative leaders from the leader of the agency that administers payments to appointed lawyers, Maine will not be able to meet its constitutional obligations. Josh Tardy, who heads the Maine Commission on Indigent Legal Services, that caseload is climbing, while the number of lawyers willing to accept new cases is plummeting.
“Absent significant immediate improvements in the options MCILS can choose from to staff cases and provide appropriate support to counsel, the state faces the specter that it will fail to provide counsel to a person constitutionally entitled to representation,” Tardy wrote.
He got the answer to his letter last Friday, when members of the Appropriations Committee voted out a unanimous report on spending the $1.2 billion budget surplus that did not include any funding for indigent legal services.
The highlight of the budget is a $729 million program that will send $850 checks to Maine taxpayers with household incomes up to $200,000 a year. But there is nothing for people facing a criminal conviction that could land them in jail and make it harder for them to get a job, rent an apartment or apply for financial aid to go to college.
This year, the American Civil Liberties Union of Maine filed a class action lawsuit on behalf of five incarcerated people who say they did not receive adequate representation from assigned lawyers. Maine should not wait to lose a case like this to be forced to do the right thing. The Legislature had the money to fix this broken system, but they blew it.
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