Unpacking the Sausage: With public defenders, you get what you pay for

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As one of roughly 150 attorneys who walked away from Maine’s public defender system in the last year, I’m relieved to see the ACLU of Maine finally sued us.

Maine fully relies on contract services from private attorneys to fulfill the role of a public defender’s office. It is the only state in the nation to do so, and providing commercial-quality legal services to defendants at a fraction of the cost sounds like a great deal in theory.

Bre KidmanIn practice, however, the ACLU lawsuit follows years of failed attempts to reform a failing system. 

The Constitution guarantees the right to counsel for a person accused of a crime. If you read it, you’ll notice it doesn’t guarantee prosecutors, judges, or police. Strangely, there’s always enough money in the budget for prosecutors, judges, and police, and never enough to fulfill even the most pared-back of asks for indigent defense.

Even after drawing national attention for our abject failure to fulfill our constitutional duties, Gov. Janet Mills consistently refuses to sign on to bipartisan efforts to properly fund the program.

Both the governor and most news articles are quick to note the lack of oversight for attorneys and the ways in which this has led to quality control issues. But neither ever seems to acknowledge the ways allocation of public resources stacks the deck against defendants.

While prosecutors enjoy public service student loan forgiveness, health insurance, retirement plans, paid time off, prime office space, computers, internet, phones, support staff, steady pay, and other benefits, defense attorneys get a few days of mandatory training, a promise of $80 per billable hour (regardless of how many nonbillable hours are involved), and a Form 1099 at the end of the year. Even the cost of phone calls with incarcerated clients through the jail’s for-profit phone system must be paid out of pocket upfront. 

I suppose I could say I left because getting paid at the end of a case became unsustainable as the pandemic backlog dragged cases on for years, but truthfully that’s only a small piece of it. Like many others, I left because I was burned out. 

I still feel guilty about that. I honestly believed I was just going to slow down and take fewer cases for a while. I don’t feel guilty enough to go back, though. In retrospect, the thing that took the greatest toll wasn’t the inadequate pay or the lack of support, although those certainly didn’t help. The real issue was feeling as though my presence as the state’s underfunded afterthought in the courtroom was being used to lend grotesque injustices a veneer of constitutional legitimacy.

One of my last clients was an unhoused person who had broken into a church for shelter on a winter night. After initially being held on a cash bail well beyond his means (causing him to miss an appointment that would have allowed him to get housing), he eventually gathered up the money and was bailed. He died of exposure days later because he still couldn’t get shelter. 

Another client, who was on probation for charges stemming from substance use disorder, had a brief relapse following a series of personal tragedies but immediately clawed her way into a very rare long-term inpatient treatment bed. In spite of the Herculean effort to rectify her misstep, a warrant was issued for the probation violation and she was picked up at rehab and taken to jail, where treatment options were limited to a weekly meeting with an attendance cap.

I’d be willing to bet an hour of Maine Commission on Indigent Legal Services pay that nearly everyone on the roster has at least one story like this. The criminal justice system is built to encourage frequent flyers and a properly funded public defender’s office wouldn’t necessarily change that.

Still, I can’t help but think the failure to fund defense or consider holistic outcomes can only come from a larger system that cannot be bothered to concern itself with the humanity of people charged with crimes. Has anyone told the governor that doing so would drastically reduce recidivism and, as a result, the overall cost of criminal justice in Maine?

We’re going to have to come up with the money to fight the ACLU somewhere.

Bre Kidman is an artist, activist, and attorney (in that order), and the first openly non-binary person in history to run for the U.S. Senate. They would be delighted to hear your thoughts on the political industrial complex at [email protected].

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