Maine is the only state in the union that doesn’t have an Office of Pubic Defender to defend the poor. But, since 1963 and the landmark case of Gideon versus Wainwright, every jurisdiction in the country has had the obligation to provide a lawyer to anyone who can not afford to hire one. Maine has so far met its legal obligation by hiring private attorneys to defend the poor.
Maine Office of Public Defender and LD 1433: A History
Now Maine is considering LD 1433, an Act to create an Office of the Public Defender. In this video Merritt Heminway explains how we got to this point, and what it means for the city of Portland and the State of Maine.We still have a crisis on the state of Maine where we’re not actually paying the true cost of representing the poor. Click To Tweet
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Here’s a transcript of Merritt’s video:
One of the foundations of American law, one of the reasons why we’re proud to be Americans is the Equal Protection Clause. It doesn’t matter whether you’re rich or poor. It doesn’t matter what color of skin you are, it doesn’t matter what your religion is, the law must treat you equally, and that is the foundational concept to Gideon versus Wainwright in 1963. That’s the foundational concept of why the state must provide a lawyer free of charge to someone who’s not, who can’t afford it, because there’s no such thing as a fair trial for someone who doesn’t have a lawyer.
The law is too complicated for someone who hasn’t been to law school, much of the proceedings are gibberish. There is no way that a criminal defendant can get a fair trial if they don’t have a lawyer, and the law recognizes this, but sadly what we’ve seen in many jurisdiction, and Maine is one of the worst offenders is that system of providing attorneys for the poor, has been so chronically underfunded, that the quality of representation suffers, suffers and slowly diminishes. And what that means is that rich have better lawyers that the poor, and if you’re going to lock people up, that’s not right.
LD 1433 An office of public defender in the state of Maine? How did we get here?
The vast majority of people who are accused of crime are too poor to afford a lawyer. Since 1963, in a famous case called Gideon versus Wainwright, the United States Supreme Court made it crystal clear to every jurisdiction in the United States that if a defendant is too poor to afford a lawyer and the government wants to lock that person up, then the government must also provide a lawyer to that defendant free of charge.
So the law is clear and it has been since 1963. Every state and often counties within the state have come up with a different strategy to meet that obligation. Maine is the only State of Union that doesn’t have an Office of Public Defender. In other words we don’t have a publicly funded office that employs attorneys to represent the poor.
In the state of Maine what we have instead is a signup sheet, any attorney who meets the basic qualifications can sign up to accept court appointed cases. Cases where a judge makes a determination that the defendant is too poor to afford an attorney and then literally consults the list. An attorney maybe simply called or emailed and told congratulations, you’re now representing this person who’s too poor to afford an attorney.
The attorney then gets paid by the state of Maine at the conclusion of the case. The attorney gets paid at the rate of $60 an hour. In the state of Maine, and certainly in the City of Portland, the rate of $60 an hour means that, that attorney is losing money for every hour that they’re spending representing a poor person.
So what the state of Maine does, not having an Office of the Public Defender, is it represents the poor by having individual criminal defense attorneys subsidize that representation. In other words it’s out the pockets of the individual attorneys that the poor are fully represented, because the state only pays for a fraction of the cost of actual representation of the defendant.
So it’s a real problem, and it has been for a long time. For a long time since 1999, the state paid $50 an hour. Then the Maine Commission on Indigent Legal Services was formed, the Maine Association of Criminal Defense Lawyers hired a lobbyist. There was a lot of excellent work done in the Maine legislature, and the hourly rate got raised from $50 an hour to $60 an hour over the past two years. As I said $60 an hour still means that attorneys were actually losing money after you pay for office expenses and insurance expenses etcetera.
So we still have a crisis on the state of Maine where we’re not actually paying the true cost of representing the poor. Of course the poor make up the vast majority of criminal defendants in the State of Maine. So Governor LePage, and many democratic co-sponsors put together a bill, LD 1433, an Act to create an Office of the Public Defender.
The title is promising in that an Office of the Public Defender would have certain advantages that we don’t enjoy here in the State of Maine, but a close reading of the bill makes it clear that, that’s not actually what the bill does.
This bill seems to encourage a contract base system where the state might sign contracts with individual law firms, very problematic. There’s a real concern that, that might create a race to the bottom where the state is contracting with the simply the lowest bidder, and law firms that are willing to represent a ridiculous amount of clients at one time, could potentially be the lowest of bidder, then the representation of poor people across the state would suffer greatly.
The bill also seems to allow the governor oversight of an Office of the Public Defender, which is also problematic. Any Office of the Public Defender would have to be independent from executive authority. So the bill as written LD1433 as written would certainly would not solve the problem. But that doesn’t mean we don’t have a problem. That doesn’t mean that the system as it is right now is working.
We have a lot more to say on this topic. Stay tuned.