Criminal defense for the poor is reaching crisis point with just 163 attorneys available to take court-appointed cases in the entire state of Maine.
That’s less than forty per cent of the 410 attorneys who were available on rosters in May 2019 before the pandemic began and the ballooning of cases that resulted. The fall in the number of available attorneys has been in steady decline for at least last three years. The bar is also aging, and there are not enough new defense attorneys to make up for those who leave.
Rostered attorneys take clients regarded as poor - known as those who are indigent - and cannot afford their own lawyer so have to have one appointed by a court at state expense. The right to have a lawyer for a case where jail is a risk is a constitutional right under the Sixth Amendment of the United States Constitution. Maine also guarantees the right to a lawyer under the state constitution for criminal cases as well other case types - such as when a person may lose custody of a child or be forced into mental health treatment, known as involuntary commitment.
In the period between now and 2019 there has been a 62% increase in felony and misdemeanor criminal cases - and between this year and last the caseload was flat. In other words, the same number of cases that were being brought and ended without any dent in the backlog started by Covid-19 delays.
The Maine Commission on Indigent Legal Services says that for same ratio of cases to attorneys as the 410 number from 2019, there would need to be 528 criminal defense lawyers taking cases in Maine, compared with the 163 there are currently. That 163 number also includes anyone on the roster but potentially limited to certain case types, like homicides, rather than those needed to deal with the vast majority of dockets - a steady and unrelenting stream of petty misdemeanor cases that the State of Maine continues to bring without court pushback.
MCILS also said that because of the vast difference between case loads taken by attorneys, the number of available attorneys on current rosters “substantially overstates” the need for new lawyers to join, because some do other private work. There are also a small number of attorneys who also do too many cases to meet national standards. For instance, seven attorneys take 25% of the statewide caseload - amounting to hundreds of open cases for each lawyer.
Part of the problem in attracting and retaining defense attorneys to keep up with new existing cases is the pay disparity between prosecutors and defense counsel. While defense lawyers are paid $80 an hour, that is supposed to pay for office space, legal research databases, health insurance, stationary, internet and phone - everything that is accounted for as hidden costs for a salaried prosecutor employed by counties or the state that they do not get in their pocket.
These hidden costs would be the same if defense attorneys were salaried as public defenders and paid the same as prosecutors. In essence, Maine gets criminal defense on the cheap by paying the existing rate of $80 an hour.
An MCILS report to be discussed by legislators said that “even the least expensive Assistant District Attorney has an effective hourly rate of $74.53, without financial responsibility for staff or an office. When staff costs are considered, the effective hourly rates for a prosecutor range from a minimum of $132.19 to $183.50 for an experienced elected District Attorney.” It adds: “MCILS will not successfully attract and retain attorney talent absent pay parity.”