The Legislature has passed a bill to add more attorneys to the state's new public defender system.
But not everyone agrees that more money and attorneys are the best solutions to what's been described as a constitutional crisis. And it remains unclear how Gov. Janet Mills — a former attorney general and prosecutor who has urged other changes to the public defender system — will respond to the legislation.
In March, a Superior Court judge gave the state until this month to come up with a more concrete plan to meet the state's constitutional obligation to provide low-income defendants with attorneys. If the state failed, Justice Michaela Murphy said she would order jails to release many criminal defendants who had been waiting for more than two weeks or an attorney and would cause charges to be dropped against people who had been without counsel for 60 or more days.
Murphy said earlier this week that the plan subsequently submitted by Maine's Commission on Public Defense Services shows progress but she did not take further action. It's the latest twist in the "constitutional crisis" that has left some defendants lingering in jail for months without counsel.
The emergency measure passed by the House and Senate will add five new public defenders as well as three paralegal and administrator positions. The bill would also relax requirements on private attorneys in hopes of convincing more of them to take on indigent clients.
Rep. Jennifer Poirier, R-Skowhegan, said members of the Judiciary Committee worked hard to craft the bipartisan compromise on a complicated issue.
"I know it's money and I know we have to figure where it's coming from," Poirier said. "But this has to be a priority. People deserve justice. They are entitled to it under the constitution. And we need to make that happen here."
But some Republicans objected to the bill's $3.2 million price tag, especially coming weeks after Democrats pushed through a "baseline" budget. And some of their concerns also echoed those raised by Mills, a Democrat.
Rep. Ken Fredette of Newport unsuccessfully urged his House colleagues to reject the 8 positions and, instead, adopt his amendment to require the public defenders commission to adopt new qualification and caseload standards. Fredette pointed out that the budget for Maine's new Commission on Public Defense Services has grown from zero to $51 million in just a few years.
"This is what we're creating folks," Fredette said. "This is the nose under the tent. They start it and then it grows."
Fredette also said his amendment was consistent with proposals outlined by the Mills administration during the committee process.
A spokesperson for Mills said the governor is reviewing the bill.
But during her budget address to the Legislature in January, Mills said that the commission must change its rules and processes before it gets additional money from the Legislature. A former defense attorney as well as attorney general, Mills said at the time that the commission has become "so focused on rules that it has driven away" the private-practice attorneys who could take on indigent clients by working through the commission.
Until the public defender's office was created several years ago, Maine was the only state in the nation that relied entirely on private attorneys willing to represent low-income defendants by working with the indigent services commission. But the number of attorneys willing to take cases plummeted and did not rise appreciably even after lawmakers more than doubled the reimbursement rate to $150 an hour.
Mills has said that the commission must do more to increase those ranks of partnering attorneys, however.
"And because it’s a crisis, the Public Defense Commission must do a lot more to find lawyers immediately for people charged with crime," Mills said during her January speech. "That means getting rid of arbitrary case load limits, restrictions, rules and rostering requirements, none of which are constitutionally required. It means accepting help from the Judiciary in finding capable lawyers to take cases, rather than resisting that help. And it means allowing the newly created public defender offices — which have shown some promise in Kennebec County — to handle the volume and type of cases required."
Mills has 10 days to sign, veto or allow the bill to become law without her signature.
