Legislators could try again this year to form a public defender office to supplement Maine’s current system of court-appointed lawyers for indigent defendants.

The Judiciary Committee discussed that possibility Thursday when the state’s Commission on Indigent Legal Services presented its annual report.

The Sixth Amendment guarantees that any person who is charged with a crime and facing potential jail time has the right to a lawyer, and the U.S. Supreme Court has said the government is obligated to pay if that person cannot.

Maine is the only state that does not employ public defenders in state courts to fulfill that right. Instead, the state pays private attorneys to represent people who cannot afford to hire them. The commission oversees that system, which has been in a state of upheaval since independent experts and the state’s own watchdog agency identified constitutional and organizational problems with the way it is run.

The Maine Legislature added six jobs to the understaffed commission last year and increased the hourly rate for appointed attorneys from $60 to $80. But those actions fell short of expert recommendations, and lawmakers have yet to fund or pass a bill from last year that would establish a pilot project for public defenders in Kennebec County.

Representatives of the commission urged the Judiciary Committee on Thursday to continue reforms to the system.


“I would not want this legislative body to leave this meeting thinking in any way, shape or form that the public defense system in Maine is improved to the point that it should be,” Commissioner Robert Cummins said. “That’s just not the reality.”

The annual report delivered by Executive Director Justin Andrus outlined some improvements, such as updating billing practices and developing a better auditing system. But he said the commission is struggling to recruit lawyers to take appointments and does not always have local attorneys available in rural areas of the state.

Dozens of attorneys stopped taking cases in the last year, but Andrus said the commission has stemmed those departures and has seen some return since the hourly rate went up.

Right now, 279 attorneys are available for new appointments.

Andrus suggested a number of steps that lawmakers could take, but he said the state needs to move forward with a hybrid system made up of both public defenders and appointed private lawyers. While many attorneys would still choose to work for themselves, others would want the benefits and public service loan forgiveness that would be available to them as government employees, he said.

“We’re sort of at a crossroads,” Andrus said. “We’re able to operate within the instructions received from the Legislature in staffing us and funding us. We are going to be able to operate within the budget we have been allocated at the level that we’re currently staffed. What we are unable to do yet is move forward in the direction of a public defense system that really meets the strictures of the Sixth Amendment.”


Committee members questioned Andrus about how they should focus their efforts during this session.

“I wouldn’t say we are awash in money right now, but there is more money available to improve what is a fundamental right that needs to be protected, and that is that indigent defendants receive adequate representation,” said Rep. Thom Harnett, a Democrat from Gardiner.

They discussed further increasing the hourly rate – the expert recommendation was $100 – to help attorneys who are in private practice cover the costs of health insurance, support staff and other resources available to prosecutors. They talked about hiring public defenders who could travel to rural counties to take appointments when local attorneys aren’t available. And they talked about creating a chief public defender, someone who could take policy positions or advocate for the legal needs of the poor.

“One of the things that I’ve noticed is that (the commission) doesn’t have the political power that they need in the system to speak up,” said Sen. Lisa Keim, a Dixfield Republican.

Robert Ruffner, a criminal defense attorney who takes appointed cases, said after the meeting that he hopes the Legislature does move forward with the public defender office. He said a young attorney he wanted to hire recently took a job as a public defender in Colorado instead because she could qualify for loan forgiveness there, a benefit not available to her under Maine’s current system.

“I think that would be the single biggest step in moving the system forward that they could take,” Ruffner said of a public defender office.

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