An emergency law allocating $3.5 million to address Maine’s public defense crisis took effect Wednesday without the governor’s signature.

Maine is struggling to provide legal representation to everyone who has a constitutional right to a court-appointed lawyer if they can’t afford one on their own. The situation had grown so dire that a judge in Kennebec County recently ordered that people who have waited longer than two weeks for a lawyer start to be released from jail.

In an effort to address the issue, and quickly, state lawmakers passed the emergency spending bill this month, allowing Maine’s public defense agency to hire eight new employees, including five public defenders who will help take on more clients whom the state has struggled to represent.

The bill also allows judges to pay private lawyers whom they appoint through February 2026, even if they haven’t met all of the Maine Commission on Public Defense Services’ training and eligibility requirements. These nonrostered attorneys must still have three years of related legal experience, and judges can’t appoint anyone who has been suspended by the commission previously.

Gov. Janet Mills. Shawn Patrick Ouellette/Portland Press Herald

A spokesperson for Gov. Janet Mills’ office said she was “disappointed” that the bill did not also require the commission to make bigger changes to its eligibility rules, which she has argued are scaring away qualified attorneys. Rather than veto the bill, she allowed it to become law after 10 days without her signature.

“As Governor Mills has said, the Maine Commission on Public Defense Services must make substantive changes to welcome more attorneys before its appropriation is increased yet again,” spokesperson Ben Goodman said in an email Wednesday. “The governor was disappointed that LD 1101 did not require these reforms as a condition of additional funding, but she remains willing to work with the Legislature on further initiatives to address Maine’s public defense crisis.”

Barbara Cardone, a spokesperson for the judicial branch, said the court system is preparing to implement the new law by creating a process to track when nonrostered attorneys are appointed to cases. She said the Maine Supreme Judicial Court plans to appoint some of these attorneys to child protective appeals, but couldn’t speak to what lower-level judges plan to do.

A NEW PLAN

Mills previously requested several amendments to the emergency spending bill in March that are not included in the law — including changes to the commission’s eligibility requirements and removing union protections for newly hired defenders. A lawmaker said in April that the Judiciary Committee plans to consider her requests in other bills.

The commission has disputed that its standards are to blame for the lack of attorneys, arguing that lawyers are more dissuaded by unmanageable caseloads and that there are thousands more cases pending in Maine courts than six years ago, according to data from the judicial branch.

Still, commission members plan to discuss their eligibility requirements and the emergency law at their next meeting on April 29, the agency’s executive director, Jim Billings, said in an email Wednesday.

The commission has begun implementing changes under a new plan it was required to file with Superior Court Justice Michaela Murphy after she found the agency liable for violating these defendants’ constitutional rights to counsel.

The plan includes reassigning some administrative staff to focus on tracking and finding counsel for unrepresented cases. They will have to pause certain trainings and scale back on how closely they examine vouchers submitted by attorneys who are seeking reimbursement for public defense work.

The new plan also suggested offering new incentives for private attorneys to join the commission’s rosters, and emergency discussions on altering “perceived barriers” to the application process.

DEPLOYING MORE DEFENDERS

Commissioners and the American Civil Liberties Union of Maine, which sued the commission more than two years ago, both say a robust system of public defenders is the state’s best solution.

Maine now has more than two dozen public defenders working throughout the state, the first of whom were hired in late 2022. Maine was the last state to hire public defenders, after previously relying exclusively on private attorneys who are reimbursed by the state.

As new public defenders have begun taking on more cases, the number of people statewide who need lawyers has dropped in recent months. As of Wednesday, the state needed lawyers for about 400 criminal cases, according to the commission’s executive director. The commission also needs more than 150 lawyers for parents who could lose custody of their children due to alleged abuse or neglect.

The commission is waiting on Maine’s Bureau of Human Resources to approve most of their job postings before they can start hiring the new emergency public defenders, Billings, the executive director, said Wednesday. The bill pays for five new positions, including five public defenders, two paralegals and an office assistant.

The commission’s more substantive requests for new staff and funding face a much steeper, uphill battle from lawmakers and the governor, who said in January that she will not propose any new funding for the agency until it relaxes its eligibility requirements.

Murphy, who is overseeing the lawsuit by the ACLU, is still deciding if the state supreme court should weigh in on the state’s appeal over her order to start releasing defendants who don’t have attorneys.