The next governor will have a significant role in shaping criminal defense in Maine as lawmakers contemplate whether to keep the state’s unique system or fall in line with the rest of the country and employ public defenders.

Janet Mills, the incumbent, has personal knowledge of how Maine’s unique public defense system is working — or isn’t. She represented people as a court-appointed attorney before becoming the first woman in the state to serve as attorney general.

Her challenger Paul LePage, a businessman seeking his third non-consecutive term as governor, has long supported transitioning Maine to a county-based public defender system.

Maine is the only state that does not employ public defenders. Instead the Maine Commission on Indigent Legal Services, or MCILS, contracts private attorneys to represent adults and children charged with crimes or at risk of losing the right to parent their children.

The election comes as Maine’s public defense system is in crisis. Dozens of defense lawyers have temporarily or altogether stopped accepting new court-appointments to cases, which threatens an actual denial of counsel in some counties. The courts are facing a possible multiyear backlog of cases. And recent pleas for a special session of the Legislature to approve emergency funding have gone unanswered.

“Neither governor has demonstrated any understanding whatsoever of the magnitude of the crisis,” said James Howaniec, a Lewiston lawyer.

Paying for public defense

Mills and LePage have independently said they support the constitutional right of people to have a lawyer, and the state’s responsibility to pay for the defense of clients who can’t afford a lawyer. Their terms as governor, however, come with a mixed record of putting money toward an adequate defense for the poor.

“As a person who has defended low-income people in court, I value the constitutional right to counsel as a cornerstone of our justice system and believe we must do a better job of delivering legal services, including securing representation and ensuring timely hearings before the court,” Mills said in a statement Thursday to The Maine Monitor. “No person in Maine should go without representation, and no person should languish while waiting for their day in court.”

The first draft of the state’s biennium budget comes from the governor. It serves as a roadmap for lawmakers when it comes to the administration’s priorities.

Mills declined in 2020 and again in 2021 to include new initiatives to expand and improve staffing at MCILS in the budgets she sent to legislators. It set up an uphill battle for lawmakers and advocates to secure more funding, which ultimately fell short both years of what the agency said it needed.

She eventually signed budgets that included additional ongoing funding for MCILS, which has been able to hire additional employees and raise lawyers’ wages. But it was not able to open a public defender office, even though the office was supported by lawmakers two years in a row.

Mills later earmarked $4 million in the Maine Jobs and Recovery Plan to pay fees for court-appointed attorneys as the state worked through a backlog of cases from court closures during the pandemic. MCILS has not spent any of that money.

LePage, too, moved money to MCILS in a crisis. He transferred nearly $1 million to MCILS in 2012 when lawyers faced five weeks without paychecks because the agency ran out of money before the end of the fiscal year. 

MCILS began operating a year before LePage entered office in January 2011. Its formation moved training, supervision and payment of defense lawyers from the discretion of judges to a standalone state agency. Critics say the agency was chronically underfunded during its first decade.

“What’s happening with Mills — I don’t know if it’s any different than LePage — but what’s happening with Mills is MCILS is mostly being ignored until they have to go begging hat-in-hand for supplemental funds every six months, it seems, because everybody wants the whole system to work but if it’s not funded properly it’s not going to,” said Jeff Davidson, 51, a Washington County lawyer.

Facing a record shortage of lawyers accepting new cases for MCILS, commissioners last month sent a letter to Mills and legislative leaders to ask for a special session of the Legislature to add $13.3 million to MCILS’s budget to increase attorney pay from $80 to $150 an hour.

The commission submitted a proposal that would increase its budget to $62.1 million annually, open four public defender offices and sustain lawyer wages at the proposed $150 an hour. 

The pay raise may attract some defense lawyers back to MCILS because it would allow them to afford to do the work while also running a private firm, Davidson said. 

With less than three weeks left before the election, it is unlikely that the Legislature will convene soon to vote on MCILS funding.

“New funding is likely justified to better support the system, with the appropriate amount to be determined in conjunction with the Legislature,” Mills said in her statement to the Monitor. “However, I also want to ensure that the commission is doing everything within its power to recruit lawyers — particularly new lawyers.”

Howaniec predicted that Maine’s public defense system will not last three months without a pay raise.

“It is criminal that our elected leaders do not have any sort of backup plan,” Howaniec said. “There has been a complete lack of leadership at all levels of government.”

A choice between public defenders and reducing barriers

Who should defend Maine adults and children accused of crimes or parents under investigation by child protection services, and what role the state should have in employing or supervising these lawyers, is a growing question.

As governor, LePage proposed replacing MCILS with an Office of the Public Defender that would employ and contract with defense lawyers. 

When asked if LePage planned to revive the bill and make it a priority during the 2023 legislative session if elected, a campaign spokeswoman said the administration’s focus will first be on Maine families’ ability to pay for groceries and heating oil, the school system and new regulations on the state’s lobster industry.

“However, he does believe strongly that we need to move to a county-based public defender system and would be supportive of efforts to do so. Maine’s indigent legal system is in a constant state of crisis, and this is unpredictable for both attorneys and defendants. For this reason, Gov. LePage will continue to advocate for a public defender system,” said Lauren LePage, the candidate’s daughter and spokeswoman. 

A bipartisan group of lawmakers successfully lobbied to include money to hire Maine’s first five public defenders this spring. Hiring is underway. Mills said the jobs “are a step forward and a stark difference from my predecessor’s” proposal. 

Mills criticized LePage’s proposal as “a public defender’s office in name only.”

Mills said she supports reducing barriers to allow lawyers who recently passed the bar exam to represent indigent defendants, especially in rural areas. She also encouraged the commission on judicial branch to “encourage lawyers from every firm in Maine to designate members of the firms to take court-appointed cases.

The courts also need to “be a part of the solution” and move cases more quickly to address the backlog, Mills said.

Tina Nadeau, a Portland lawyer, warned against lowering the standards for lawyers who do court-appointed work.

“Dabblers from the civil world will not fix anything,” Nadeau said during a recent commission meeting. “The state is represented by specialists — people who do exclusively criminal law. I know that’s not the reality in most of the state for the defense bar, but encouraging people to take on one of two cases won’t make a dent in the backlog. It certainly won’t ensure effective representation for the clients.”

Lawyer warns of impending collapse

The next governor will inherit a class action lawsuit filed by people who received legal services under Maine’s unique system of public defense. The ACLU of Maine has alleged on their behalf that MCILS is ineffective in training, paying or supervising court-appointed lawyers. 

Settlement negotiations began Oct. 12, though it’s uncertain that the ACLU and attorney general’s office will reach an agreement on how to reform the state’s criminal defense system or whether they will continue with costly litigation. 

Davidson said Mills’ past legal experience doesn’t give her an edge to handle the lawsuit because she hasn’t been “in the trenches” doing court-appointed work in a while.

He predicted the problems leading to the ACLU suit will get worse in the next few years with the risk of more litigation. 

Some defendants in Washington County are waiting weeks in jail to be appointed a lawyer, and Maine is on the verge of not being able to provide attorneys for some people, Davidson said. Then it will become a question of whether the courts will continue to proceed with cases.

He was doubtful that Mills or LePage were prepared to chart a path forward through MCILS’ collapse.

“Either way it’s going to be a fight over beans while the system is getting ready to collapse,” Davidson said. “That’s all they do — is count beans up there. It’s just a fight over dollars instead of a fight over what they really, really should be doing.” 

The detour to avoid a crisis is proper funding, Davidson said.

“Everybody understands what the issue is. The issue is right now we cannot provide adequate counsel to people who we are constitutionally required to provide counsel to, and the way the system has to change is by funding it appropriately so that lawyers will be willing to do that work. That’s it,” Davidson said. “Whether you do that through a public defender system or whether you do it through some sort of hybrid public defenders, personal-appointment system — really that’s just the way you manage the problem. But until it’s funded appropriately it’s not going to be fixed.”

Samantha Hogan reports on government accountability and the criminal justice system for The Maine Monitor. Reach her with other story ideas by email: samantha@themainemonitor.org.