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Reforms to Criminal Defense Watered Down By Maine Judicial Committee

Maine Judiciary Committee, March 16

An important Maine committee of lawmakers has watered down several proposals recommended in a report they commissioned and was published nearly two years ago.

Representatives and Senators on the judiciary committee voted to increase the rate paid to Maine criminal defense attorneys taking court-appointed cases by less than recommended, increase staffing of the commission that oversees them by the amount actually proposed, and agreed to set up a state-wide appellate public defender office in a much smaller form.

A pilot project to set up a trial-level public defender office in Kennebec county did not pass, but mainly because members could not agree on when it should start – not whether it should start at all.

The Maine Commission on Indigent Legal Services, and the judiciary committee, have been working on recommendations by the Boston-based Sixth Amendment Center in a report that the committee commissioned. That report was published in April 2019.

The votes made on March 16 still have a long way to go before they emerge as paid-for initiatives in a state budget, but they are progress - albeit watered down. However, they are an improvement on Governor Janet Mills's proposed budget as she refused to fund any of the initiatives discussed. The votes at Tuesday’s judiciary committee – held electronically via Zoom - after reconvening from last week to discuss funding for the Maine Commission on Indigent Legal Services (MCILS).

The first three initiatives discussed at the meeting proposed to increase staffing at the MCILS in various stages and levels - covering attorney oversight, audit, and training. All those initiatives passed.

Initially the committee voted to raise the basic level of staffing - to add four additional attorneys, and two paralegals (dealing with attorney supervision and audits) at a cost of $670,116 for each of the next two years. This was agreed unanimously, with one member absent.

Next the committee voted to add an additional staff member (an office specialist), at a cost of $87,871 for each of the next two years. Of the thirteen members present, two voted against - Rep. Laurel Libby (Republican, House District 64 (Auburn (part), Minot)), and Rep. Jennifer Poirier, House District 107 (Skowhegan / Madison (part)).

On an enhanced level of staffing (covering an additional three attorneys and four paralegals), this would bolster the supervision and audit staffing levels already approved, and establish training and investigative subdivisions of MCILS at a cost of $707,775 – again for each of the next two years, starting July 1, 2021. The committee passed this initiative, but of the thirteen members present, four voted against - Rep. Laurel Libby (Republican, House District 64 (Auburn (part), Minot)), Rep. Jennifer Poirier, House District 107 (Skowhegan / Madison (part)). Rep. Lisa Keim (Republican, District 18 (Oxford), and Rep. Kathy Downes (Republican, District 130 (Bucksport and Orrington)).

There was, however, a unanimous vote to increase the salary range for the MCILS executive director, currently held on an interim basis by Justin Andrus, raising the top-level of the band for that position by just over $9,000. All thirteen members present voted in support. It is still unclear if Mr. Andrus will remain in the position longer term after the departure in December of his predecessor, John Pelletier. There are currently eight applicants in the running for a permanent replacement in that role, none of which includes Mr. Andrus.

One of the most impactful parts of the committee’s budget discussion was a unanimous vote to increase in the hourly rate paid to the 375 or so criminal defense attorneys who take court-appointed cases. These attorneys are given to defendants unable to afford their own but entitled to one under the Sixth Amendment to the United States Constitution, The current compensation rate of $60 an hour is among the lowest in the United States for those who take cases involving indigent defendants. That rate was set back in 2015 and in recent years has led to a decline in attorneys willing to take court appointments while the backlog of unresolved cases has ballooned during the pandemic. The initiative voted on was to increase that rate to $80 an hour, still short of the $100 an hour recommended by the Sixth Amendment Center. Every member of the committee that was present voted to approve the increase to $80 an hour.

Recognizing that this fell short of the Sixth Amendment Center’s $100 an hour recommendation, interim executive director Justin Andrus said it was “a compromise that will get us a long way to where we need to be.”

Two other initiatives took members more than an hour to discuss outside the committee’s meeting as parties caucused on how to vote, and even then members needed to break out again. In the end, the committee voted to have a severely pared down state-level appellate level public defender office from the one recommended, but members could not agree on a public defender office in Kennebec county and there was no majority vote. The latter was designed as a pilot project for potential rollout in other counties and was another recommendation of the Sixth Amendment Center.

One proposal put to the committee was a state-wide appellate public defender office. This was also a suggestions of the Sixth Amendment Center in its 2019 report and fully staffed as proposed would cost approximately $2,449,458 per year.

In the end, Senator Lisa Keim proposed building up this office with two positions initially – an attorney and a paralegal - in 2021-22, and increasing that to four the following year by adding an extra two attorneys, plus the addition of a sunset on July 1, 2024 (to determine if the office should continue), and have a report back to the judiciary committee on December 1, 2023, on the new office's work.

She said it was “an easier ask” and more practical, while making “meaningful change.” Ten members voted to support her proposal, while Representative Jeffrey Evangelos (Independent, District 91 (Friendship, Waldoboro, Washington)) voted against, only because he said the state-wide appellate office should be fully funded as originally proposed. Three members were absent when the vote was taken.

Representative Jeffrey Evangelos

Representative Evangelos called the revised appellate office “milquetoast” and said the State is about to get sued, alluding to potential litigation by the ACLU of Maine on the quality of representation of indigent defendants. He was the most critical of attempts to water down the budget proposals.

On the proposed Kennebec county public defender’s office, which would deal with trial-level cases, the issue was much more divisive. As proposed this would be for nine public defenders, three paralegals, three social workers, two investigators, and an office manager. The cost for that level of staffing would be $1,961,273 for each of the next two years, starting in July. This office of salaried staff would take over an estimated 80% of the court-appointed work in Kennebec county currently taken by private attorneys who work on a case-by-case basis.

However, a proposal to only fund this office from July 1, 2022, could not get agreement. Only four members voted yes, seven voted against (including three who said this should be fully funded for this year and next year. The vote means it will probably not happen in either year as other committees have to take on these proposed budget items. Three other members were absent for that vote.

Those who voted no on the Kennebec county public defender’s office for both years: Rep. Laurel Libby (Republican, House District 64 (Auburn (part), Minot)), Rep. Jennifer Poirier, House District 107 (Skowhegan / Madison (part)). Rep. Lisa Keim (Republican, District 18 (Oxford), and Rep. Kathy Downes (Republican, District 130 (Bucksport and Orrington)).

Those who voted against because they wanted the public defender office to be fully funded for both years and not just one: Representative Thom Harnett (Democrat, District 83 (Farmingdale and Gardiner)), Representative Erin Sheehan (Democrat, District 130 (Biddeford)), Representative Jeffrey Evangelos (Independent, District 91 (Friendship, Waldoboro, Washington)).

No vote was taken on funding for both years, much to Representative Evangelos's frustration.

The committee also voted to bring the current budget for MCILS, which is consistently supplemented because it does not account for what is actually spent, be brought in line with the actual amounts paid. This was agreed unanimously.


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