Pleading the Sixth: The Maine Commission on Indigent Legal Services (MCILS) is predicting that it will run out of money to pay assigned counsel attorneys shortly after the 50th Anniversary of Gideon v. Wainwright (March 2013). The unavailability of funds, combined with low hourly rates, is causing attorneys to leave the system even as the Governor proposes significant increases for the next biennium. As MCILS pushes for increased rates, the Governor tasked the Office of Policy & Management to look at alternative methods of providing services to what is currently in use in Maine today. The Sixth Amendment Center sorts it all out for you.
In 2010, the State of Maine took a big step forward toward meeting the aims of Gideon v. Wainwright with the creation of the Maine Commission on Indigent Legal Services (MCILS). MCILS is an independent five-member commission statutorily charged with providing “efficient, high-quality representation to indigent criminal defendants, juvenile defendants and children and parents in child protective cases, consistent with federal and state constitutional and statutory obligations.” MCILS oversees a statewide assigned counsel system that pays attorneys on an hourly basis. And, though MCILS is charged with administering an indigent defense system of “qualified and competent counsel in a manner that is fair and consistent throughout the State,” and in a manner that is “free from undue political interference and conflicts of interest,” MCILS has been underfunded since its inception.
For the second biennium in a row, MCILS will run out of money well before the close of the fiscal year, as reported in the February 2, 2013, Portland Press Herald. But while the Governor used rainy day funds to close the gap during the last biennium, such emergency funds are apparently not available this year. And because much of the indigent defense services in Maine are provided by individual lawyers, or by small law firms who work almost exclusively on public cases, the fall out from MCILS not paying their bills will have far-reaching impacts. As one indigent defense provider who runs a nine-attorney office told the Portland Press Herald, “[g]oing 2½ to 3 months without income” will be “catastrophic.” “Almost all of our practice is defense of indigent legal defendants. It’s something we love, we’re good at it and we don’t want to give it up,” she said. “Everything associated with running an office comes out of that money.”
An editorial in the February 5, 2013 Maine Sunday Telegram notes, “[i]f the state does not come up with an estimated $1.8 million by mid-April, there will be no money left to provide legal representation to people who can’t afford it until the end of the fiscal year on June 30. That could mean that for 10 weeks, the state could not charge someone with a crime that carried a risk of jail if he could not afford his own lawyer.”
Perhaps, more importantly, the Maine Sunday Telegram notes, “[n]ot only has the system come to the brink of running dry two years in a row, but when it is funded, it’s not a sound system.” The root of the problem is that assigned counsel attorneys earn only $50 an hour, the same hourly rate that has been in place since 1999. “That might sound like a comfortable wage to some, but operating as small-business people who have to pay staff, rent, utilities and other expenses out of their hourly wage, it’s not enough.” As a Bangor Daily News opinion piece on January 27, 2013 points out “it costs about $100 an hour” to run a law office in Maine. “[A]ttorneys who represent disadvantaged clients shouldn’t have to take a $50 loss for every hour they devote to defending people greatly in need of protection within the judicial system.”
The low hourly rates, according to the Maine Sunday Telegram, negatively impacts the right to counsel system because “[g]ood lawyers are leaving the system, creating shortages, especially in rural areas If the administration or the Legislature has a more efficient way to provide these services, they should say so. But not paying the bills is not a solution.”
In response the Governor’s Chief Counsel penned his own opinion piece in the Bangor Daily News, noting that the proposed 2014-2015 has an indigent defense increase of $5.5 million dollars. This is not insignificant as the MCILS currently operates on approximately $20 million per biennium (or approximately $10 million per fiscal year). However, that increase really will only back fill for the current overrun ($1.8 million), account for increased caseloads, and add only a ten percent raise on assigned counsel hourly rates (up to $55/hour).
Under the enabling statute, MCILS is charged with setting the hourly rate and in their most recent budget proposal sought to increase the rate to $70 per hour for FY 2014 and $75 for FY 2015 – a budget that according to the administration would have cost the state nearly $27 million dollars. Accordingly, the governor has charged the Office of Policy and Management, under the supervision of a former state attorney general, to figure how to provide services in a way that is more cost predictable, including looking at “the attorney-hourly rate structure, a public defender system, contracted attorneys or firms or various hybrids.”
The Sixth Amendment Center (6AC) has in the past explored the question of whether a public defender model provides better representation than an assigned counsel model based on reports coming out of Texas and the U.S. Department of Justice, Bureau of Justice Statistics. However, the 6AC found both reports to be comparing a “system” (i.e., a public defender office) to a “non-system” (i.e., a non-coordinated assigned counsel model). Whereas, Maine has a coordinated assigned counsel system, these reports cannot help to determine whether or not, for example, developing a public defender model for Maine’s urban areas would have advantages to clients and the criminal justice system.
What we can say is that the American Bar Association, Ten Principles of a Public Defense Delivery System (Principle 2) requires that“[w]here the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.” Additionally, the North Carolina Office of Indigent Defense Services has issued a series of reports that looks at the question of cost-effectiveness between public defender and assigned counsel “systems.” The most recent report, FY10 North Carolina Public Defender and Private Assigned Counsel Cost Analysis, determined that in fiscal year 2010, public defender offices “saved the state $5.4 million compared to what it would have cost if (private assigned counsel) hand handled their cases.”
Will the pending crisis and the Governor’s response lead to positive substantive change to the relatively new system or shut down the system entirely? The answer may very well hinge on whether the state is prepared to move to a public defender model for the urban parts of the state while raising the hourly rate to retain good attorneys in the more rural parts of Maine.
 The Governor appoints all five members, though his appointments are subject to review by a joint legislative committee on judicial matters. The Governor also must appoint one member based on a list of qualified nominations put forth by the President of the Senate. Similarly, two other appointments must be made based on nominations submitted by the Speaker of the House and the Chief Justice.