By: Natalie May | Vermont Editor

November 27, 2023

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Recent reporting reveals that Maine’s indigent defense system is on the brink of catastrophe.[1] During the 2022 fiscal year, Maine reported a record 31,257 indigent defense cases.[2] The annual average number of indigent defense cases in Maine is approximately 26,500.[3] Meanwhile, the number of attorneys willing to take court-appointed cases has dropped by more than 50% statewide over the past three years. In May 2019, there were 410 attorneys on the Commission’s roster.[4] The COVID-19 pandemic compounded preexisting challenges in Maine’s judicial system.[5] In September 2022, there were less than 170 attorneys on the roster.[6] By January 2023, there were just 136 attorneys, 64 attorneys accepting adult criminal cases and 72 attorneys willing to take on child protective cases, in the entire state of Maine.[7]

This situation is a result of how Maine provides counsel to indigent defendants. Maine is the only state in the country that does not have a public defender’s office providing counsel to indigent individuals who have been charged with crimes.[8] Instead, a shrinking roster of private, court-appointed defense attorneys provide (almost) all of Maine’s constitutionally required indigent defense.[9] This method of providing defense is failing Maine’s indigent defendants. Maine need only look west, over the tops of the White Mountains to Vermont, for an example of how a rural state successfully fulfills its constitutional duties.

Vermont provides counsel to indigent defendants through two hybrid programs: public defense and assigned counsel.[10] Of the fourteen offices statewide, seven are staff offices—staffed by public defenders—and seven are contract offices.[11] When conflicts arise with public defense, the court appoints an assigned counsel contractor. When conflicts arise with both public defense and assigned counsel, the court will assign an attorney ad hoc.[12] Caseload relief contractors provide assistance to staff offices statewide.[13] Vermont’s Office of the Defender General also has specialized offices that handle juvenile matters, prisoners’ rights, and appeals to the Vermont Supreme Court.[14]

Every other state has moved away from utilizing private defense attorneys to provide principle indigent defense services for two primary reasons.[15] The first is the challenge associated with forecasting and containing the costs of a private defense system.[16] The second is the difficulty of supervising and training private attorneys to ensure adequate representation is being provided to indigent clients.[17] To address these concerns, and because of Vermont’s successful hybrid model, Maine should adopt Vermont’s method of providing counsel to indigent criminal defendants.

Now is the time for Maine to act, as reporting indicates that the situation continues to evolve on a near daily basis. Leadership is in flux. In January, Maine’s first supervisory public defender resigned after just one month on the job.[18] He was one of the first five public defenders hired by the State of Maine in December 2022.[19] Then, in February, the executive director of the Commission, Justin Andrus, announced his resignation.[20]

The funding landscape is also shifting. In late February, the Commission voted to increase pay for court-appointed attorneys from $80 to $150 per hour.[21] Governor Janet Mills had approved the supplemental budget, which included funding that authorized the Commission’s decision.[22] This announcement may have persuaded some Maine attorneys in returning to court-appointed work.[23] According to the Commission, within a few weeks, the number of rostered attorneys had increased by roughly 40%.[24]

Then, in mid-March, the Maine Advisory Committee to the U.S. Commission on Civil Rights sent a letter to high-ranking Maine officials, urging them to increase funding for the state’s indigent defense system.[25] The Advisory Committee is working on a report, to be published later this year, outlining the civil rights implications of Maine’s “overburdened” indigent defense system.[26] Because the State’s biennium budget is currently being considered by the Legislature, however, the Advisory Committee released preliminary recommendations that align with the Maine Commission on Indigent Legal Services’ budget proposal.[27] Maine’s Judiciary Committee has proposed a more modest budget, but a budget that nonetheless includes $3 million to open the first county-based public defender office and funding to maintain the wage for court-appointed lawyers at $150 per hour.[28] All this news in the last three months.

Maine is on the brink of real change; is finally grappling with the best path forward. Suddenly, “Maine has an opportunity to realize a modern, just and equitable legal system.”[29] But Maine’s work will not be done until there is a lawyer for every Mainer who finds themselves caught up in the criminal legal system. Whether a public defender or a contracted private attorney, in Portland or in Presque Isle, charged with petty theft or with murder. Every day without such a system is a day when Mainers are being denied a constitutional right—the right to counsel.

[1] See, e.g., Kevin Miller, Commissioner Warns Maine’s Indigent Legal System has ‘Gone Over a Cliff,’ Me. Pub. (May 24, 2022), https://www.mainepublic.org/courts-and-crime/2022-05-24/commissioner-warns-maines-indigent-legal-system-has-gone-over-a-cliff (explaining that criminal defendants are being held in jail without counsel because there are not enough attorneys willing to represent indigent defendants).

[2] Samantha Hogan, Availability of Maine Defense Lawyers Reaches All-Time Low, Me. Monitor (July 5, 2022), https://www.themainemonitor.org/availability-of-maine-defense-lawyers-reaches-all-time-low/.

[3] Id.

[4] Miller, supra note 1. Note that this roster does not appear to be publicly available.

[5] See Emily Allen, Backlogs Causing Delays in Thousands of Maine Court Cases, Portland Press Herald (Apr. 3, 2022), https://www.pressherald.com/2022/04/03/backlogs-causing-delays-in-thousands-of-maine-court-cases/ (describing thousands of cases pending in Maine’s judicial system, both criminal and civil).

[6] Kevin Miller, Indigent Legal Defense Commission Asks Lawmakers to Approve $13M for ‘Emergency’ Situation, Me. Pub. (Sept. 28, 2022), https://www.mainepublic.org/politics/2022-09-28/indigent-legal-defense-commission-asks-lawmakers-to-approve-13m-for-emergency-situation.

[7] Samantha Hogan, New Public Defenders Help but Don’t Fully Alleviate Court’s Troubles Finding Enough Defense Lawyers, Me. Monitor (Jan. 15, 2023), https://www.themainemonitor.org/new-public-defenders-help-but-dont-fully-alleviate-courts-troubles-finding-enough-defense-lawyers/.

[8] Sixth Amend. Ctr., The Right to Counsel in Maine: Evaluation of Services Provided by the Maine Commission on Indigent Legal Services 26 (2019) [hereinafter Sixth Amend. Ctr. Report].

[9] Miller, supra note 1; see Kevin Miller, Maine’s Top Judge Makes Plea For More Attorneys to Address ‘Crisis,’ Me. Pub. (Nov. 10, 2022), https://www.mainepublic.org/courts-and-crime/2022-11-10/maines-top-judge-makes-plea-for-more-attorneys-to-address-crisis (noting that earlier in 2022, the Commission received stated funding to hire its first five public defenders, and that the Commission’s Executive Director hopes they will be hired and begin their rural-focused work by the end of 2022).

[10] About the Office of the Defender General, Off. of the Def. Gen., https://defgen.vermont.gov/about-us (last visited Nov. 8, 2023).

[11] Id. Contract offices are private firms that contract with the Office to provide primary public defense services. Id.

[12] Id.; Ad hoc, Black’s Law Dictionary (11th ed. 2019) (defining “ad hoc” as “[f]ormed for a particular purpose”).

[13] Id.

[14] Id.

[15] Sixth Amend. Ctr. Report, supra note 8, at 26.

[16] Id. (explaining that private systems rely on estimating what caseloads may look like in the future based on current trends and calculating what level of funding those caseloads may require, but because there is no guarantee that current averages will continue, costs can fluctuate wildly).

[17] Id. (describing the lack of supervision or training required in Maine’s current system).

[18] Patty Wight, Maine’s Lead Public Defender Resigns After One Month, Me. Pub. (Jan. 25, 2023), https://www.mainepublic.org/courts-and-crime/2023-01-25/maines-lead-public-defender-resigns-after-one-month.

[19] Id.

[20] Samantha Hogan, Executive Director of Maine’s Public Defense Agency Will Resign, Me. Monitor (Feb. 21, 2023), https://www.themainemonitor.org/executive-director-of-maines-public-defense-agency-will-resign/.

[21] Phil Hirschkorn, Maine Lawyers Who Represent Indigent Defendants to Receive a Pay Raise, WMTW (Feb. 22, 2023), https://www.wmtw.com/article/maine-lawyers-who-represent-indigent-defendants-to-receive-a-pay-raise/43028531#. Note that this funding runs out at the end of this fiscal year, on June 30, 2023, unless Maine lawmakers choose to make the funding permanent. See Samantha Hogan, Advisors to U.S. Commission on Civil Rights Urge Maine Lawmakers to Pay For Indigent Defense, Me. Monitor (Mar. 10, 2023), https://www.pressherald.com/2023/03/10/advisors-to-u-s-commission-on-civil-rights-urge-maine-lawmakers-to-pay-for-indigent-defense/.

[22] Hirschkorn, supra note 21.

[23] See Christopher Williams, Maine Attorneys Coming Back to Court-Appointed Rosters, Sun J. (Mar. 2, 2023) https://www.sunjournal.com/2023/03/01/maine-attorneys-coming-back-to-court-appointed-rosters/ (noting that attorneys began showing interest in returning to the roster once it looked like the Maine Legislature would be increasing the hourly wage for court-appointed attorneys).

[24] Id. 40%  sounds like a lot of attorneys, but recall that in January 2023, there were just 64 attorneys accepting adult criminal cases. Hogan, supra note 7. Doing some mental math, an estimated 90 attorneys now occupy the roster. Four years ago, there were 410 attorneys. Miller, supra note 1.

[25] See Hogan, supra note 21.

[26] Id. For more information about the Advisory Committee’s ongoing work, see Maine, U.S. Comm’n on C.R., https://www.usccr.gov/states/maine (last visited Nov. 8, 2023).

[27] A pause to emphasize what that budget proposal included: An hourly wage of $150 for court-appointed lawyers, and four new public defender offices, two providing trial-level services, one exclusively for appeals, and one dedicated to post-conviction relief. Samantha Hogan, Maine Reaches ‘Point of Failure,’ Seeks $62.1 Million for Indigent Public Defense, News Ctr. Me. (Aug. 23, 2022), https://www.newscentermaine.com/article/news/crime/maine-reaches-point-of-failure-seeks-621m-for-indigent-public-defense-crime-justice/97-60909103-808e-4baf-876b-b4dbd8429d78. Sound familiar? See About the Office of the Defender General, Off. of the Def. Gen., https://defgen.vermont.gov/about-us (last visited Apr. 14, 2023) (“There are . . . two offices that handle matters post adjudication. The Appellate Defender handles appeals to the Supreme Court. The Prisoners’ Rights Office represents persons in the custody of the Commissioner of Corrections.”).

[28] Hogan, supra note 21.

[29] Eric Floyd, Opinion, It’s Time for Maine to Make Its Legal System Just and Equitable, Bangor Daily News (Mar. 7, 2023), https://www.bangordailynews.com/2023/03/07/opinion/opinion-contributor/maine-poor-legal-system/. Eric Floyd is currently incarcerated at Bolduc Correctional Facility in Warren, Maine. He has studied at the University of Maine at Augusta. Id.