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This column was written by Sarah A. Churchill, Esq. Attorney Churchill is an associate attorney at Nichols & Tucker and is the former President of The Maine Association of Criminal Defense Attorneys. Although our firm does not accept court-appointed cases, we urge you all to contact your legislators and urge them to provide much improved funding for those who do.

This year a landmark case from the United States Supreme Court turned 50 years old. It is a case entitled Gideon v. Wainwright. It is the case that guarantees all of us a lawyer in our darkest hour should we be unable to afford to hire one. It is the case that mandates that the government provide a lawyer for indigent people in criminal cases who cannot afford to defend themselves.

In Maine the promise of Gideon is fulfilled by the Maine Commission on Indigent Legal Services. The Commission maintains a roster of local attorneys who have agreed to take on these types of cases. The Commission provides training for these attorneys, has established standards by which their performance will be measured and compensates them at a rate of $50 per hour for their work. This rate has remained unchanged for 15 years. If you think about that it is extraordinary. Gas, stamps, food, clothing, vehicle repairs etc. have all gone up in price dramatically in the last 15 years.

Most of the attorneys who work for the Commission are small business owners. These attorneys are active in their communities and care about the people of the State of Maine. These small business owners use this rate to cover rent for office space; utilities for the office; computers; printers; photocopiers; fax machines; phone bills for both the office and a work cell phone; office supplies; postage; office staff; benefits for office staff; legal research engines like Lexis and Westlaw; malpractice insurance; taxes and health insurance. Typical overhead expenses for a small law firm of one attorney and one office staff person are $4000-$5000 per month. Additionally, not all of the time a lawyer spends in the office can be billed. When you take all of these factors and expenses into consideration the current rate does not cover basic expenses. Furthermore, many of the basic service providers that we all use in our daily lives charge far higher labor rates per hour. Plumbers charge $88 per hour exclusive of parts and special equipment. Mechanics at car dealerships charge $90 per hour. Best Buy’s Geek Squad will set up your printer using their online service for $49.99; a service which takes far less than an hour to complete.

Despite the good intentions of those that have designed this system the indigent defense system in the state of Maine is in dire financial straits. This system has been chronically underfunded for many years. By way of example, for this fiscal year which runs through June 30, 2013 there is a $1,000,000.00 shortfall. This means that until the budget passes in Augusta, which contains a provision to fix this problem, the Commission is unable to pay its bills. This shortfall has occurred many years in a row and affects the ability of small business people to function.

Maine’s total funding for fulfilling Gideon’s promise this fiscal year is $12,526,000. Of that funding only $11,526,000 has been approved by the Legislature and received by the Commission. Out of this funding less than $600,000 is used pay Commission personnel to administer this program. Maine lags behind most other states in the level of funding provided for constitutionally required counsel. The Judicial Branch last studied the compensation rate in 1997 and compared the costs here with costs in other jurisdictions of similar population and geographic area. The states used for comparison were Connecticut, Massachusetts, New Mexico, Rhode Island, Vermont and West Virginia.

The yearly expenditures for indigent defense in those jurisdictions were as follows for fiscal year 2008:

  • Connecticut: $48,074,375
  • Massachusetts: $186,706,437
  • New Mexico: $41,300,000
  • Rhode Island: $12,671,983
  • Vermont: $10,284,021
  • West Virginia: $36,365,454

Vermont comes in below our current funding but has a population that is several hundred thousand people smaller than Maine. Likewise, Rhode Island, with a population also several hundred thousand smaller than Maine, has proportionally a much larger appropriation for indigent defense. The level of compensation provided to service providers lags behind all but a handful of states as well.

The American Bar Association has promulgated the Ten Principles of a Public Defense Deliver System. One of the ABA’s ten principles of a public defense delivery system is parity between prosecution and defense. In Maine, the Attorney General’s budget for 83 District Attorney and Assistant District Attorney positions for this fiscal year was $8.3 million for salary and benefits – approximately $100,000 per position. There are also additional prosecutors in the Attorney General’s office (financial crimes, tax fraud, healthcare fraud, homicides, and Assistant Attorneys General representing DHHS in child protective matters) bringing the total number statewide to approximately 125 for our counterparts – at $100,000 per position that is approximately $12.5 million for attorneys. However, that funding does not include the overhead which is covered by county governments for the District Attorneys. For example, in York County alone that figure is $972,134 appropriated for 2011 to cover overhead. In Cumberland County the overhead was over $1,000,000 for the District Attorney’s office for 2011. Nor do those figures include any costs from their investigative wings (Maine State Police, local law enforcement, etc.) used by prosecutors. The Commission’s funding also covers any investigative tools used by constitutionally required counsel.

It is a required function of government to provide counsel for an indigent person accused of a crime. This provision of counsel is mandated by both the Sixth Amendment to the United States Constitution and Article One, Section Six of the Maine Constitution. Without constitutionally required counsel, the criminal justice system cannot function and justice cannot be served. The manner in which this core government function is provided has undergone many changes in the last few years, but one thing has remained unchanged – that this portion of the system is chronically underfunded and is no longer sustainable. Justice, and Gideon, deserve better.

If you have been charged with OUI or any criminal offense, please call us for a free consultation at Nichols & Tucker 207-879-4000.

Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).

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