OH NO, NOT ANOTHER “OFFICE OF THE PUBLIC DEFENDER” PROPOSAL!
Posted by Edmund R. Folsom, Esq., February 13, 2017
Once again, there is a proposal before the Maine Legislature to establish an “Office of the Public Defender.” As with the last such proposal, a little over a year ago, under this one the Office of the Public Defender would consist of a Chief Public Defender and 2 Deputy Public Defenders. That’s it, three lawyers would cover the entire State of Maine. That would make it the strangest public defender’s office in the land. The reason it would be so strange is it really wouldn’t be a public defender’s office at all. Instead, it would be a deceptively named small operation whose primary (if not sole) mission would be to achieve cost containment, through bulk rate contracts with private attorneys for defender services. There are plenty of other states where such contact systems have been tried, and they have roundly failed. Such contract systems tend to produce perverse incentives, resulting in fairly crappy criminal defense services. This, in turn, tends to lead to the state failing to meet its constitutional mandate to provide competent defense counsel to indigent defendants, which in turn tends to lead to the jettisoning of the bulk rate contract system.
The current system involves the assignment of individual cases to individual private attorneys who are paid $60.00 per hour. I understand the Governor’s frustration with his inability to get a grip on the ever-increasing cost of the current system, at least part of which must have to do with the raising of the hourly rate from $50.00 (where it was frozen for about 15 years) to $60.00 over the past couple of years. But the current proposal is so ill-defined that I can’t understand how anyone can be confident it will solve anything. As with the last proposal, it’s a pig-in-a poke thing, and I’m not into legislation that requires us to pass it to find out what’s in it. The current system has been in effect for a long, long time. It works, and I guarantee it’s one hell of a lot less expensive than it would be to establish an actual statewide public defender’s office, staffed by actual public defenders. In a time of declining crime rates, D.A.’s offices have been ramping up their attorney staff at a brisk rate over the past year or so. That’s fine, I guess, but what doesn’t strike me as fine is simultaneously hobbling the effectiveness of the defense side by moving it to a low-bidder, bulk contract system. Maine criminal defense attorneys secure an awful lot of jury trial acquittals for their indigent clients, in addition to all the reductions to lesser charges and dismissals they secure on a regular basis. That might be a sign that the indigent defense bar is performing its essential function– keeping the State honest, defending the individual from State overreach—very well. The burden should be squarely on the proponents of change to identify what particular problems need fixing in the current system, and exactly how those problems will be fixed by the proposed changes. I don’t see that at all in the proposed “Office of the Public Defender” legislation. I recently heard the Governor make an impassioned plea to the Legislature during his State of the State address: “First do no harm.” That is an excellent prescription for the Legislature to follow, very well applied here.