Defense attorneys say indigent work remains a heavy lift despite pay increase

In Maine, hundreds of people charged with crimes are imprisoned for months without legal representation, because they can’t get a court-appointed lawyer.

Much attention has been focused on the declining number of attorneys who are willing to represent indigent clients. Some say recruitment is challenging because the work is grueling, the caseloads overwhelming and the pay relatively low. And they say the problem is not just the lack of lawyers in the system, but the overburdened, backlogged courts.

For decades, Maine has relied on a roster of private attorneys to represent defendants who can’t afford their own. That’s in contrast to most other states, which rely on a system of public defenders.

Jim Howaniec is a defense attorney in Lewiston who’s been practicing law for nearly four decades, taking mostly court-appointed work.

When he first set up shop in the 1980s, Howaniec said it felt like a high-water mark for defense law.

“There were a lot of lawyers like myself, who sort of came out of the baby boom generation, went to law school, were very idealistic,” he said.

But Howaniec said his generation is aging toward retirement and the pool of attorneys is not being refilled quickly enough, as younger lawyers seek out higher-paying specialties.

Maine nearly doubled pay for indigent work last year from $80 an hour up to $150 an hour. Howaniec said that helped, but still pales in comparison with many other law careers.

“Civil lawyers are making $300, $400 an hour for, you know, divorce cases,” he said. “Let alone, you know, corporate type work.”

That attrition, he said, places increasing strain on the dwindling number of attorneys still taking indigent clients.

At one point recently, Howaniec said he was juggling 150 serious felony cases. Cases, he said, that are some of the most difficult to shepherd through the legal system.

“You’re dealing with people in crisis, you’re dealing with some of the toughest, you know, social and economic issues that society has to offer,” Howaniec said.

Attorneys taking more serious court-appointed cases, such as those involving homicide, juvenile defense and domestic violence, must meet eligibility requirements designed to ensure they have the requisite experience.

While those requirements can further limit the number of attorneys available, Howaniec and others said they’re an important safeguard against underqualified lawyers getting in over their heads.

Tina Nadeau, an attorney who leads the Maine Association of Criminal Defense Lawyers, said focusing just on the number of lawyers misses the other half of the equation.

“It’s not a defense counsel availability issue; it’s there are far too many cases,” she said.

Nadeau said there are many more attorneys taking on indigent work than state roster numbers would suggest. That’s because many are already over capacity with court-appointed work and take their names off the lists of those willing and able to take new cases.

At the same time, the number of pending criminal cases statewide is 75 percent higher than it was five years ago. That math, Nadeau said, just doesn’t pencil out.

“The system itself is holding on to thousands more cases than it was pre-pandemic. So just sheer numbers make that challenging,” she said.

To try to steer the system back toward equilibrium, Nadeau said prosecutors should take a hard look at which cases they choose to bring to trial.

“If this case, were to go to trial, is this case worth anything? Does it improve public safety to pursue it? Can we actually prove the case?” Nadeau said.

Jim Billings, who heads up the Maine Commission on Public Defense Services, said the pay increase to $150 an hour has yielded a bump in recruitment.

Before the increase, Billings said the commission processed on average one or two applications per month for new attorneys. During the first half of this year, it processed about four per month. In June, it processed seven.

“So what we’ve seen is a steady increase in the number of new applicants per month coming into the system since the rate increase,” Billings said.

The commission also opened and staffed its first physical office for public defenders last year, in Augusta, and is in the process of setting up similar offices across the state.

Billings said the Augusta office has made a dent in the number of unrepresented cases in the area.

“And so I think that bodes well for what we’ll see in these other areas as they open up and get up to speed,” he said.

Billings said the commission is asking the Legislature to authorize and fund three more public defender offices next year in Cumberland County, York County and the midcoast.

For some, that progress isn’t happening fast enough. The American Civil Liberties Union of Maine is suing the state on behalf of defendants who have not had access to representation. That case could go to trial this fall.

Meanwhile, Maine’s indigent legal defense system continues to struggle, sometimes with disastrous consequences.

Leein Hinkley, the armed suspect who was killed after a chaotic police standoff in Auburn last month, had recently been released on bail after a judge found the state had violated his Sixth Amendment rights by failing to provide him with representation.

Howaniec, the attorney in Lewiston, said the finger pointing that followed Hinkley’s release sidesteps the core constitutional questions at play for Hinkley and any other defendant being held without representation.

“Should Leein Hinkley have gone another three weeks and another three weeks beyond that, and three weeks turns into three years without an attorney?” Howaniec said.

Howaniec said he represented Hinkley years ago, but couldn’t take the case this time around because he was already overwhelmed with dozens of other indigent clients.

This article appears through a media partnership with Maine Public .