There’s “no easy fix” to the state’s indigent defense crisis, the leader of the Maine Commission on Public Defense Services told lawmakers Wednesday.

With defendants in more than 860 criminal cases still waiting for a lawyer as of Wednesday (and parents in almost 100 protective custody cases), the commission only had about 102 lawyers in Maine accepting trial-level work, Executive Director Jim Billings said.

The number of unrepresented cases has more than doubled since March. In several cases, judges have agreed that defendants’ constitutional rights to an attorney are being violated.

It’s the commission’s responsibility to find and vet  lawyers for judges to appoint to these cases. Billings said the commission is doing all it can, despite mounting criminal caseloads and years of chronic underfunding. He frequently referred to the short list of available lawyers as a “finite resource” in Maine courts.

Jim Billings, executive director of the Maine Commission on Indigent Legal Services, at his office in Augusta in 2023. Joe Phelan/Kennebec Journal

“When we have a scarce resource, we have to familiarize ourselves with the terms rationing and triage, and make intelligent choices not just on the defense side but also on the charging side,” said Billings, who said he’s talked with the Maine Prosecutors Association about bringing back legislation they previously supported to eliminate certain Class E charges.

Billings also brought each lawmaker a thick stack of documents, including the last five years of budget requests that he and former directors have sent to the appropriations committee, as evidence of what the commission has tried to do to ensure all defendants are represented.

The commission will meet Monday to discuss its next budget request. Billings said in the long term, the commission wants to continue investing in full-time public defenders, rather than the private lawyers it primarily relies upon, so that by 2027, public defenders are able to take 50% of the state’s adult criminal and protective custody cases.

SOME PROGRESS

The Government Oversight Committee notably agreed in early 2023 to wrap up nearly three years of mandatory check-ins with the commission. It was a sign that the group had made remarkable improvements following a 2020 state investigation that focused on its mismanagement and questionable billing practices.

With new leadership, the commission successfully convinced the state to increase the reimbursement rate for private attorneys from $80 to $150 an hour in March 2023. It launched the state’s first team of public defenders in December 2022 and opened the state’s first brick-and-mortar public defense office in Kennebec County last year.

Last year, lawmakers agreed to let the commission open four more public defense offices. As of Wednesday, they had selected “district defenders” to lead each office but are still working to hire trial-level attorneys. Billings said they’re also working to hire a small team of public attorneys to exclusively represent parents in protective custody cases this fall, depending on state approval.

For private attorneys, the commission also has enacted new eligibility requirements and case limits in an effort to ensure more quality representation to clients. Lawmakers questioned Wednesday whether these new standards might be at fault for the current crisis by preventing some lawyers from pitching in.

Billings said he hears this often and that it appears unfounded. The commission agreed last month to temporarily make it easier to get a waiver. But Billings said he hasn’t seen many responses. Instead, he said that fewer lawyers are taking new cases because they’ve reached a “personal capacity” or for personal reasons.

“What they told me was, ‘I have had a life change. I’m older. I have to take care of my parents. I can’t take as many cases I used to,’ ” Billings said.

Others are simply overwhelmed by snowballing cases: Billings said there are roughly 3,000 more felony cases pending in Maine than five years ago. But as of Wednesday, only 34 attorneys were willing to do protective custody cases and 35 were taking adult criminal cases, he said.

NO DEADLINES

Some lawmakers noted there are other stakeholders in this crisis, including prosecutors and the judicial branch.

Sen. Craig Hickman, a Democrat from Winthrop who chairs the committee, said they want an “all-hands-on-deck” approach.

“It’s going to be a long-term process, as you have made clear,” Hickman told Billings. “This is not going to go away in the short term.”

Sen. Lisa Keim, R-Dixfield, said she wants to invite some of these other parties to answer questions, too.

“As many times as we’ve had public defense services come in front of us, the courts are rarely held under such a microscope for their systems,” she said.” I think it’s well past time we do that.”

Justin Andrus, who led the commission until he resigned last year to return to private practice, said after Wednesday’s hearing that he’s seen “no political will” to act on numerous proposals to improve the court system in a way that would address the backlog of cases.

That includes the Speedy Trial Act, which passed both chambers but was never funded and will have to be reintroduced next session.

Maine is one of only a few states where there are no statutory deadlines for court appointments.

In Massachusetts, criminal defendants must be released from jail if they haven’t been appointed an attorney within seven days, and their criminal cases cannot continue if they’ve waited more than 45 days for a lawyer.

Other states have enacted temporary deadlines to help address their own struggles to find lawyers for defendants. In Oregon, a federal judge ruled last fall that unrepresented defendants be released from jail after seven days, except for homicide cases where there is a strong presumption of guilt.

Andrus said that having clear deadlines for cases would close out older cases, freeing up attorneys. And, he said, it would ensure the rights of Mainers accused of crimes who can’t effectively navigate the criminal justice system on their own.

“Protecting the public includes protecting that defendant who has not been convicted,” he said.