Sixth Amendment Center Reports on Maine’s Indigent Defense System.
Posted by Edmund R. Folsom, Esq., April 5, 2019.
The Sixth Amendment Center has issued a report on Maine’s system for providing legal representation to indigent criminal defendants. The report is titled, “The Right to Counsel in Maine-Evaluation of Services Provided By the Maine Commission on Indigent Legal Services” (Evaluation). The Evaluation was commissioned by the Maine Legislative Council in March of 2018. As background, Maine is the only state in the United States that has absolutely no form of public defender’s office staffed by state-employed public defenders. In Maine, everyone entitled to have counsel appointed by the State under the 6th Amendment to the U.S. Constitution is assigned a lawyer in private practice who agrees to accept appointments at the current rate of $60.00/hr. The State does not provide office space or accoutrements, and it does not separately compensate the attorneys for their overhead expenses – everything comes out of the $60.00/hr. Since 2011, the Maine Commission on Indigent Legal Services (MCILS) has overseen Maine’s indigent counsel system. In that time, total MCILS annual funding has more than doubled, from $11,085,606 in 2011 to $22,695,201, with the bulk of it spent on $60.00/hour attorney fees. The Legislature is, naturally, interested in exploring ways to better predict and control the costs associated with their constitutional obligation to provide counsel for indigent defendants. At the same time, the Legislature must ensure that Maine’s system is not deficient in meeting its obligation. That’s where the Sixth Amendment Center’s study comes in, to report on the existing system and to recommend improvements.
Bulk Rate Contracts
Over the past several years, bills were introduced to the Maine Legislature that appeared likely to result in more widespread use of fixed-sum contracts for bulk rate representation of indigent defendants. Maine already uses this type of arrangement in Somerset County, where three attorneys contract to represent all indigent defendants other than those with whom they have a conflict of interest for a fixed, bulk rate fee. The Evaluation levels a number of criticisms at this arrangement, revolving around the conflicts of interest inherent in it. One of the chief arguments against this type of system everywhere it has been used is that it creates the incentive to do as little work as possible on each case, to maximize the rate of compensation attorneys receive on each case. In Somerset County, the Evaluation points out, the contract attorneys worked an average of 6.78 hours per case in fiscal year 2013. By fiscal year 2018 that number had dropped to an average of 2.99 hours per case. As a result, in 2018, the contract attorneys in Somerset County were paid an effective hourly rate of $174.97, versus the $60.00/hr. received by attorneys elsewhere in Maine where the average time spent per case was 9.25 hours.
Criticism of Maine Courts
Maine’s courts came in for some criticism in the Sixth Amendment Center’s Evaluation. For one thing, arraignment audiences are advised of their rights in general by video played on a television screen, but there is little done to ensure that everyone there for arraignment that day sees the video or comprehends English well enough to understand it. Courts in Biddeford and Somerset County were singled out as places where the Sixth Amendment Center evaluators observed judges “Chilling the right to counsel” in their remarks to arraignment audiences. A Biddeford District Court judge was criticized for informing people they have a “right to trial,” but immediately following this by telling them their “first option is to accept the state’s [plea] offer.” A Somerset County judge was criticized for “routinely encourag[ing] defendants to talk with the district attorney, and [using] the possibility of indigent defendant’s [sic] being required to pay fees for appointed counsel to discourage defendants from requesting appointment of counsel.” The report also criticized the practice of D.A.’s engaging directly in plea negotiations with defendants before defendants are informed by the court of their right to have counsel represent them in such negotiations.
Attorney Compensation and Financial Oversight
The Evaluation contains some observations on attorney compensation that are sure to grab the attention of the cost-containment crowd. In the section on the failure of some attorneys to meet with their clients held in jail pretrial, one unnamed attorney is cited as billing the MCILS $171,880 in 2017 (that’s 55 billable hours per week, 52 weeks per year, at $60.00/hr.) without billing for a single jail visit during that time. Another section of the Evaluation, reporting on the inadequacy of financial oversight provided by the MCILS, points out that 25 of the roughly 600 attorneys paid by the MCILS billed more than an average of 8 hours per day, five days a week, for each of the 52 weeks in fiscal year 2018. At the prevailing $60.00/hr. rate, an attorney billing 40 hours a week, 52 weeks per year would make $124,800. In fiscal year 2018, the top biller billed an average of more than 88 hours per week for each of the 52 weeks that year, pulling $275,612 in MCILS fees. Of the 25 top-billing attorneys, the Evaluation found that 8 also accepted federal court appointments in fiscal year 2018, so MCILS work wasn’t even all the appointed work they were doing, let alone private-pay work.
The Evaluation makes seven major recommendations that include the establishment of a statewide appellate public defender’s office, staffed by state-employed public defenders also responsible for providing attorney support and training for ongoing certification requirements. In addition, the report recommends establishing a trial-level public defender’s office in Cumberland County, again staffed by state-employed public defenders. It recommends improved fiscal oversight for attorneys paid by the MCILS, more rigorous certification requirements, and a rate of compensation that covers attorney overhead plus $100.00/hr. for work performed. It also recommends enacting a statute to bar assistant D.A.’s from discussing cases with unrepresented defendants unless the defendants first sign a written waiver explaining their right to be represented by counsel. There is a lot more in this report. The full report and the rest of its recommendations may be viewed here. It will be interesting to see what comes of it.
November 15, 2019: An investigation of the billing issues is ongoing. Things appear to be heating up on that front. Will that be the only part that ends up treated seriously?
November 20, 2019: The MCILS held a public hearing yesterday that focused heavily on issues other than the billing practices issues raised in the Sixth Amendment Center report.