A Public Defender Administering Contracts for Maine?
Posted by Edmund R. Folsom
October 12, 2015
A lot of lawyers who do indigent criminal defense work in Maine are worried about LD 1433, “An Act to Create the Office of the Public Defender and Amend the Duties of the Commission on Indigent Legal Services.” As matters currently stand, the Maine Commission on Indigent Legal Services (MCILS) oversees the delivery of legal services to indigent defendants in criminal cases and indigent parents in child protective proceedings. The MCILS was established six years ago to create and implement competency standards for indigent counsel, to monitor and supervise attorneys performing indigent-counsel services, to create a system for tracking work performed, and to pay indigent-counsel at an hourly rate of pay. The hourly rate for court-appointed counsel from 1999 to 2014 was $50.00/hr. In 2014, the rate was increase to $55.00/hr., and more recently it was raised to the current $60.00/hr. Individual attorneys apply to the MCILS to work on certain case types. The MCILS ensures that attorneys’ training and experience levels meet the criteria for handling particular types of cases and issues rosters to the courts listing attorneys and their case-type qualifications. The courts assign attorneys from those rosters to represent indigent defendants in particular cases. In Somerset County, a different system has existed for a number of years, under which attorneys contract with the State to defend a certain percentage of the cases in that County for a non-hourly rate of pay. The day-to-day business of reviewing attorney credentials, reviewing payment vouchers, and issuing payments is handled by the MCILS’S Executive Director, Deputy Executive Director and staff.
LD1433 would create an “Office of the Public Defender.” The legislation calls for the Governor to appoint a “Chief Public Defender” for a 5-year term, with a salary on par with that of a District Attorney. The Chief Public Defender would appoint two “Deputy Chief Public Defenders,” and would be empowered to hire “staff attorneys” and support personnel. The role of the MCILS would be reduced to creating and overseeing standards for the Office of the Public Defender, regarding attorney qualifications and contracts for compensation, training, maximum caseloads, efficiency of procedures, and so forth. Ordinarily when a state creates a public defender’s office, the process involves setting up offices something like a mirror image of prosecutors’ offices. Public defenders run individual offices staffed by assistant public defenders, all of whom are employees of the state. The individual offices are staffed much the same way as prosecutors’ offices, and public defenders’ budgets afford something close to parity of resources between those who seek to convict and those who are tasked with defending persons accused of crime. Despite creating an “Office of the Public Defender” in name, however, LD1433 does not appear to be aimed at creating a traditional public defender system.
LD1433 mandates that the Office of the Public Defender must fulfill its obligations by use of contracts with private attorneys “to the maximum extent possible.” This suggests that the Office of the Public Defender is intended to serve an administrative role, more like the role currently served by the Executive Director and staff of the MCILS, than that of an actual public defender’s office. If not for the contract mandate, LD1433 might easily be taken to create a traditional form of public defender system for Maine, in which a Chief Public Defender and deputies would set up offices throughout the state, staffed by state-employed staff counsel, investigators and support personnel. However, that simply would not square with the mandate to deliver indigent-counsel services through a system that uses contracts “to the maximum extent possible.” It is this mandate to deliver indigent-defense representation through contracts “to the maximum extent possible” that has people who are concerned with competency and quality of indigent-defense representation worried.
What could possibly go wrong with a contract system, you ask? The biggest fear is that the chief objective of LD1433 is to save money over the current system. If that is the objective, those who are concerned with the quality of representation afforded to indigent defendants fear a profound deterioration, as a “race to the bottom” develops in which contracts are awarded to low-bidders who agree to handle a certain percentage of the cases in a given area for a set fee. In places outside Maine where this type of contract system has existed, the results have been extraordinarily bad, for obvious reasons. The attorneys who hold low-bidder contracts can only make them feasible for themselves if they spend very little time on each case, regardless of the time it would take to deliver an adequate defense. If the primary objective of LD1433 is cost savings, LD1433’s proponents must think that appointing a Chief Public Defender and paying that person, along with two Deputy Chiefs and their staff, to administer contracts with private attorneys, will cost less than it now costs to hire private counsel on a case-by-case basis at $60.00/hr. That’s a dubious proposition. Such cost savings will only be achieved if contract counsel either: (1) accept an effective rate of pay less than $60.00/hr., or (2) find a way to cut the time they spend on each case until they make an effective rate of at least $60.00/hr. Magic will not happen; something has to give.
On the other hand, LD1433 does not require the Office of the Public Defender to contract with attorneys on the basis of a set-fee for case-type, or a set-fee for handling a certain percentage of cases in a given area. The legislation requires the MCILS, as part of its new oversight functions, to “[e]stablish contract guidelines as well as processes and procedures to review contracts entered into between the Office of the Public Defender and contract counsel using best practices for contracts providing indigent legal services.” The types of set-rate contracts that have caused “race to the bottom” nightmares elsewhere have been widely criticized and are in no way considered among “best practices for contracts providing indigent legal services.” As far back as 2000, the U.S. Department of Justice’s Bureau of Justice Assistance criticized such contracts in its report: “Contracting for Indigent Defense Services- A Special Report.” The report makes clear that a contract that awards bids solely on the basis of cost is not a “best practices” system.
While there are strong reasons why LD1433 should not be taken to support a “race to the bottom” type of contract system, there is no reason Maine’s new Office of the Public Defender could not, in fact, simply enter into contracts with attorneys who meet standards and agree to handle individual cases assigned to them for $60.00/hr. In other words, there is nothing in LD1433 that requires any major change from the existing hourly-rate system, even if the Office of the Public Defender is put in place to take over much of what the MCILS now does, and the MCILS is assigned the new role of overseeing the Office of the Public Defender. This is why I’m not sure LD1433 is necessarily a cause for gloom and despair. On the other hand, it’s very hard to tell how the system created by LD1433 would operate. Its loose framework leaves a lot up in the air. If the chief purpose of LD1433 is to save money, it’s a bad idea, because (as discussed above) it will either create a lot of problems with quality of indigent legal representation or not save any money– maybe both. But what if the main objective of LD1433 isn’t to save money? If that’s the case, what is LD1433 intended to do? Whatever it is sure isn’t clear, and unless the goal of LD1433 is made clear it is impossible to gauge the prospects that the legislation will achieve its goal. One thing is certain: If the goal is to create another layer of bureaucracy, that’s a guaranteed “SCORE!” Aside from that, there’s little that’s certain about LD1433. If the system is broke, fix it, but don’t drop in a new engine if the problem is a fried transmission, and if it ain’t broke…well, you know how that goes. As any conservative worth his salt knows, there is nothing inherently good in change, in and of itself.
Here’s a story about Utah’s system of providing representation for indigent defendants and the problems Utah has encountered with contracts that set fixed fees for bulk representation. This is quite possibly the direction Maine is headed with LD1433. Could these contracts be one of those things, like communism, for which no matter how many times the theory proves a dismal failure in practice, there will always be some who are convinced that it just hasn’t been done properly yet, and that with their own superior genius behind it, the next attempt will surely succeed?