One of the first pieces I ever wrote for the Bangor Daily News sure made a lot of lawyers mad.
It was back in 2013, when I was counsel to then-Gov. Paul LePage. One of the less visible parts of the administration surrounded lawyers for indigent criminal defendants. LePage often talked about his regard for the Constitution; the right to counsel is part of that. And, as some advocates acknowledged, his administration was the most supportive of that right in recent memory.
But I picked a fight. Despite providing emergency bailouts to the Maine Commission on Indigent Legal Services, the administration’s efforts in the area were criticized. Why? In a budget proposing to eliminate municipal revenue sharing, LePage offered a 10 percent increase in the hourly rate for these criminal attorneys; they sought a 50 percent increase. So he was accused of not going far enough.
The merits of the criminal defense lawyers’ policy position weren’t unfounded. However, while taking shots at LePage may have been politically popular amongst members of a profession that — on average — lean markedly left, his administration was their advocate on the issue. And there is an old saying about biting hands …
But now indigent legal services are back in the news. The ACLU of Maine is threatening lawsuits against the state, accusing the system of failing to pass constitutional muster. The problem is compounded by apparently lacking financial controls. The Legislature’s watchdog agency is currently investigating the system, with reports of more than 25 attorneys charging the state six figures annually. At currently-permitted billing rates, it equals a full-time job at $60 an hour. Or, to help with the math, $125,000 per year.
LePage had advocated for a study exploring a statewide public defender system. While it may not have saved any money, it might have provided some stability, quality, and budgetary certainty. Ultimately, it wasn’t pursued, and a hyrbrid, contract-based model was proposed in 2015. The idea wasn’t pulled from thin air. Rather, it was modeled after the system in place in Somerset County which — by all accounts — was workable and working well.
But the statewide concept was rejected by the Legislature. Never one to be dismayed, LePage put it forward again in 2017.
It was rejected again, running into a buzzsaw of opposition. The arguments against it were bolstered by contentions that there is nothing really wrong with Maine’s system of indigent defense. Advocates and attorneys suggested we merely needed a few tweaks here and there and quite a bit more money.
So here we are on the cusp of 2020, and our officials in Augusta are holding hearings and hearing that the ACLU is readying a lawsuit.
LePage’s approach was criticized for seemingly being written for budgetary purposes with a businessman’s eye. It’s not wrong; after all, a big part of responsible government is prudence with the public treasury. And there is plenty of money available in the budget to come up with a better plan to defend indigent people.
For example, in 2018, the entirety of the Attorney General’s office — including salaries for district attorneys — spent just under $37 million. This includes prosecutors for every single crime charged by the state, as well as lawyers for every issue from agriculture to union negotiations. The same year the Commission on Indigent Legal Services spent more than $21 million.
The idea that every person charged by the government with a crime deserves a defense goes back to the very foundation of our nation. John Adams famously defended the redcoats on trial for the Boston Massacre. Not because he abandoned his principles as a patriot, but rather because those principles were much greater than his personal feelings.
So hopefully Augusta — and the majority Democratic caucuses — can put their personal and partisan feelings aside and dust off LePage’s plans. They aren’t perfect, but they offer a strong blueprint to build a better system. We were headed that direction six years ago. It’s great to see everyone catch up.