There has been much talk about a new bill before the Legislature, L.D. 1433 – An Act to Create the Office of Public Defender. But the bill as written does not actually create a true public defender’s office.

Instead, it creates a set of contracts between the state and the lowest bidder. This proposal is a welcome and overdue start toward addressing the long-smoldering crises of indigent defense in Maine, but it will not fix the problem.

Maine is the only state in the union that has no office of public defender, but L.D. 1433 won’t create a vital, well-funded one. 2014 Press Herald file photo/Shawn Patrick Ouellette

ABOUT THE AUTHOR

Merritt T. Heminway is co-founder of The H&H Law Center, a criminal defense firm in Portland.

There are extraordinary stories from our history that make me proud to be a lawyer in America. John Adams, defending those accused of the Boston Massacre in 1770; Clarence Darrow, defending the mentally ill man who murdered the mayor of Chicago in 1893; and Clarence Gideon, writing from his prison cell to the U.S. Supreme Court in 1962, protesting his burglary conviction after a trial at which he had no defense counsel – these true patriots and students of the law understood that any criminal trial in which the defendant does not have a competent lawyer is not only unfair but also unconstitutional.

NOT KEEPING UP

Today, the law is crystal clear: The government must provide a lawyer, free of charge, when it seeks to put an indigent defendant behind bars.

While the number of criminal offenses on the books and prison populations have increased dramatically, public defender’s offices across the nation – with the notable exception of the New Hampshire Public Defender and a few other public defender programs – have been consistently and grotesquely underfunded, with terrible and unconstitutional consequences.

Here in Maine, there is a dangerous and mistaken belief that our system is somehow apart and removed from these injustices.

Ranking third from last in the nation for spending on indigent defense, Maine is one of the worst offenders in its failure to provide adequate representation for the indigent it seeks to imprison.

Maine is the only state in the union that has no office of public defender. Instead, we have a sign-up sheet. Any private attorney who meets the very basic requirements is eligible to join the roster to receive court-appointed cases and is expected to represent their poor clients to the same standard of care of any privately retained lawyer.

The current rate of pay from the state all but ensures that the quality of indigent defense is anyone’s guess. For their work, court-appointed attorneys are paid $60 an hour and must seek an exception to be paid for more than 12.5 hours of work on a misdemeanor case or more than 37.5 hours on a serious violent felony.

Defending and honoring an individual’s constitutional rights often takes many more hours than the Maine system allows.

The current rate also means that for every hour spent on a court-appointed case, the attorney is losing money. After paying for the most bare-bones expenses of a law firm – taxes, rent, insurance, subscriptions, dues and bookkeeping – there is simply nothing left for income or benefits.

For lawyers who truly want to do this work, who seek to represent the poor in the criminal courts, the lack of a public defender’s office means that there is no comprehensive training, no mentoring, no steady income, no benefits, no insurance, no institutional memory and very little support, save the occasional conversation with a kindly, more experienced colleague.

POLICY VOICE

No public defender’s office also means there is no common public policy voice on issues of indigent defense, no specialty offices that focus on juvenile courts or appeals, no common strategy to sway the courts on important issues in criminal justice.

As a consequence, compared to jurisdictions with strong public defender systems, our case law on issues of criminal law and procedure is remarkably underdeveloped.

For all the great stories of crusading court-appointed attorneys who worked hard to remedy an injustice, in private we tell each other many more stories of terrible representation from another financially stressed-out court-appointed lawyer who may not even know any better.

Maine’s system of indigent defense is hardly a system at all.

It stumbles along on the backs of individual attorneys who take absurd financial risks to make it work and whose families, and sometimes clients, bear the consequences. L.D. 1433 does nothing to fix this problem.

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