Gov. Mills doubles down on urging Maine's public defense agency to relax rules
Jan. 29—Gov. Janet Mills made history in 2022 when she signed a bill authorizing the state to hire its first set of public defenders.
Mills said in a speech Tuesday that she has helped quadruple the state's public defense budget from $11 million to $44 million (now $51 million per year in the proposed biennial budget) and approved dozens of public defense positions across a state that previously relied exclusively on the private bar.
Yet in the last couple of years, Maine has struggled to find enough lawyers to represent people who cannot afford their own — a bedrock principle of the Constitution.
Between 2022 and 2023, Mills said the number of unrepresented criminal defendants "skyrocketed" by more than 655%. Some have said the real issue is that the number of cases in Maine courts is up.
According to data from the judicial branch, even though new prosecutions have declined by about 37% since 2010, cases are taking longer to resolve. There were 27.5% more felonies and misdemeanors pending on Jan. 24, compared to the same date in 2019.
Mills is now asking lawmakers to deny the Maine Commission on Public Defense Services' requests for additional funding until the quasistate agency removes several new caseload limits and eligibility requirements for private attorneys who are still doing court-appointed work.
"The current system has become a disastrous example of the perfect becoming the enemy of the good," said Mills. "Just a few years ago we had all the lawyers we needed, but not enough accountability. Now we have a system that is so focused on rules that it has driven away the lawyers."
There's a fundamental disconnect between Mills' statements and many of those representing indigent defendants, even as everyone agrees the state is in a constitutional crisis, with hundreds of people in Maine courts being denied their right to a lawyer simply because none have been made available.
The standards Mills has criticized were only recently imposed to address concerns that defendants were not receiving quality, effective representation, also promised by the Constitution.
And her comments come as a judge is considering whether to release people from jail if they don't have an attorney within seven days.
"I think the real undercurrent here is that there are some people behind the scenes, and obviously speaking at the podium, who think the way things were back in 1990 were just fine," said Tina Nadeau, director of the Maine Association of Criminal Defense Lawyers. "A judge could sit on his throne, and he could pick anyone before him to represent somebody, not really knowing if they know much about criminal law. Not really caring if the person got effective representation, but just that they had a lawyer, 'good enough.' We can't go back to 'good enough.'"
SCATHING REPORTS
Since July, Mills has urged the commission to change its experience requirements so former prosecutors and civil attorneys can more easily take court-appointed cases, even if they've never practiced criminal defense. She has also asked the commission to remove requirements that bar attorneys from taking certain appeals cases for clients whom they represented on the trial-level.
Ben Goodman, a spokesperson for Mills, said Wednesday that the office has heard from attorneys in private practice who have tried to join the commission's ranks, but "have not received call backs." Goodman said some have been "dropped without explanation" or "cannot jump through the bureaucratic hurdles the commission has put in place."
Mills' office was not able to provide any names of those attorneys Wednesday night.
The standards Mills is criticizing were enacted following scathing reports and investigations into the quality of representation offered by Maine's indigent defense system.
One study by the national Sixth Amendment Center (and paid for by the state Legislature) found attorneys were overworked, didn't have enough time for their clients and were routinely pleading guilty under pressure. Another by the state's watchdog agency criticized the quality of indigent representation in Maine.
"I think it's really important that people understand, (the commission) did what it did because the Legislature said, 'Fix this problem,'" former director Justin Andrus said in a phone interview Wednesday. "And they were right to call it a problem."
Andrus took over in 2021 after those scathing reports were issued and left the commission in 2023. He has now returned to private defense and court-appointed work.
"I give a lot of credit to the governor and to the Legislature for recognizing the need to fund the public defense system in ways that it had never been funded prior to 2021," said Andrus. "The problem is, the funding needs to be adequate, however painful that may be. ... The fact that they did some good work doesn't mean that's the end."
A DISCONNECT
Jim Billings, the commission's current director, disputed that there is a significant number of lawyers who are interested in court-appointed work but are stifled by the commission's rules.
"There's a myth that persists that there's ... this tidal wave of warriors that want to do our work," Billings said during a commission meeting on Wednesday. "And that somehow we are holding them back by a four-page application and some requirements to get on a specialized panel to do homicides, sex cases and protective custody cases."
Donald Alexander, a former supreme court justice who sits on the commission's seven-member board, said he has heard from lawyers who felt discouraged by the commission's rules, even though he felt they have worked hard to make waivers easily available.
"I think Jim's doing the best he can there. The problem is some people feel disrespected and don't apply for waivers," he said in an interview Wednesday night. "It's an issue that's difficult."
Alexander also said he disagreed with how the Sixth Amendment Center report characterized Maine's indigent defense system; "that was a slap in the face to a lot of attorneys who do a pretty good job."
Billings said the commission offers waivers to attorneys who want to do court-appointed work but don't meet the experience requirements.
He said he's also made it clear to judges that he's willing to work with anyone in this situation. Only a handful, "literally a handful of people," have reached out, he said.
"There's no cavalry coming to rescue the unrepresented people in the state of Maine," Billings said. "It is our roster, and it is future public defenders. And the people out there who have volunteered to help us, we're grateful for the extra help ... but that's not a long-term sustainable solution to the problem that the state of Maine has built itself into."
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Boston Globe
25 minutes ago
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The 911 presidency: Trump flexes emergency powers in his second term
An analysis by The Associated Press shows that 30 of Trump's 150 executive orders have cited some kind of emergency power or authority, a rate that far outpaces his recent predecessors. The result is a redefinition of how presidents can wield power. Instead of responding to an unforeseen crisis, Trump is using emergency powers to supplant Congress' authority and advance his agenda. 'What's notable about Trump is the enormous scale and extent, which is greater than under any modern president,' said Ilya Somin, who is representing five U.S. businesses who sued the administration, claiming they were harmed by Trump's so-called 'Liberation Day' tariffs. Get Starting Point A guide through the most important stories of the morning, delivered Monday through Friday. Enter Email Sign Up Because Congress has the power to set trade policy under the Constitution, the businesses convinced a federal trade court that Trump overstepped his authority by claiming an economic emergency to impose the tariffs. An appeals court has paused that ruling while the judges review it. Advertisement Growing concerns over actions The legal battle is a reminder of the potential risks of Trump's strategy. Judges traditionally have given presidents wide latitude to exercise emergency powers that were created by Congress. However, there's growing concern that Trump is pressing the limits when the U.S. is not facing the kinds of threats such actions are meant to address. Advertisement 'The temptation is clear,' said Elizabeth Goitein, senior director of the Brennan Center's Liberty and National Security Program and an expert in emergency powers. 'What's remarkable is how little abuse there was before, but we're in a different era now.' Rep. 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Trump frequently sites 1977 law to justify actions Of all the emergency powers, Trump has most frequently cited the International Emergency Economic Powers Act, or IEEPA, to justify slapping tariffs on imports. The law, enacted in 1977, was intended to limit some of the expansive authority that had been granted to the presidency decades earlier. It is only supposed to be used when the country faces 'an unusual and extraordinary threat' from abroad 'to the national security, foreign policy, or economy of the United States.' Advertisement In analyzing executive orders issued since 2001, the AP found that Trump has invoked the law 21 times in presidential orders and memoranda. President George W. Bush, grappling with the aftermath of the most devastating terror attack on U.S. soil, invoked the law just 14 times in his first term. Likewise, Barack Obama invoked the act only 21 times during his first term, when the U.S. economy faced the worst economic collapse since the Great Depression. 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Yahoo
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'The temptation is clear,' said Elizabeth Goitein, senior director of the Brennan Center's Liberty and National Security Program and an expert in emergency powers. 'What's remarkable is how little abuse there was before, but we're in a different era now.' Rep. Don Bacon, R-Neb., who has drafted legislation that would allow Congress to reassert tariff authority, said he believed the courts would ultimately rule against Trump in his efforts to single-handedly shape trade policy. 'It's the Constitution. James Madison wrote it that way, and it was very explicit,' Bacon said of Congress' power over trade. 'And I get the emergency powers, but I think it's being abused. When you're trying to do tariff policy for 80 countries, that's policy, not emergency action.' The White House pushed back on such concerns, saying Trump is justified in aggressively using his authority. 'President Trump is rightfully enlisting his emergency powers to quickly rectify four years of failure and fix the many catastrophes he inherited from Joe Biden — wide open borders, wars in Ukraine and Gaza, radical climate regulations, historic inflation, and economic and national security threats posed by trade deficits,' White House press secretary Karoline Leavitt said. Trump frequently sites 1977 law to justify actions Of all the emergency powers, Trump has most frequently cited the International Emergency Economic Powers Act, or IEEPA, to justify slapping tariffs on imports. The law, enacted in 1977, was intended to limit some of the expansive authority that had been granted to the presidency decades earlier. It is only supposed to be used when the country faces 'an unusual and extraordinary threat' from abroad 'to the national security, foreign policy, or economy of the United States.' In analyzing executive orders issued since 2001, the AP found that Trump has invoked the law 21 times in presidential orders and memoranda. President George W. Bush, grappling with the aftermath of the most devastating terror attack on U.S. soil, invoked the law just 14 times in his first term. Likewise, Barack Obama invoked the act only 21 times during his first term, when the U.S. economy faced the worst economic collapse since the Great Depression. The Trump administration has also deployed an 18th century law, the Alien Enemies Act, to justify deporting Venezuelan migrants to other countries, including El Salvador. Trump's decision to invoke the law relies on allegations that the Venezuelan government coordinates with the Tren de Aragua gang, but intelligence officials did not reach that conclusion. Congress has ceded its power to the presidency Congress has granted emergency powers to the presidency over the years, acknowledging that the executive branch can act more swiftly than lawmakers if there is a crisis. There are 150 legal powers — including waiving a wide variety of actions that Congress has broadly prohibited — that can only be accessed after declaring an emergency. In an emergency, for example, an administration can suspend environmental regulations, approve new drugs or therapeutics, take over the transportation system, or even override bans on testing biological or chemical weapons on human subjects, according to a list compiled by the Brennan Center for Justice. Democrats and Republicans have pushed the boundaries over the years. For example, in an attempt to cancel federal student loan debt, Joe Biden used a post-Sept. 11 law that empowered education secretaries to reduce or eliminate such obligations during a national emergency. The U.S. Supreme Court eventually rejected his effort, forcing Biden to find different avenues to chip away at his goals. Before that, Bush pursued warrantless domestic wiretapping and Franklin D. Roosevelt ordered the detention of Japanese-Americans on the West Coast in camps for the duration of World War II. Trump, in his first term, sparked a major fight with Capitol Hill when he issued a national emergency to compel construction of a border wall. Though Congress voted to nullify his emergency declaration, lawmakers could not muster up enough Republican support to overcome Trump's eventual veto. 'Presidents are using these emergency powers not to respond quickly to unanticipated challenges,' said John Yoo, who as a Justice Department official under George W. Bush helped expand the use of presidential authorities. 'Presidents are using it to step into a political gap because Congress chooses not to act.' Trump, Yoo said, 'has just elevated it to another level.' Trump's allies support his moves Conservative legal allies of the president also said Trump's actions are justified, and Vice President JD Vance predicted the administration would prevail in the court fight over tariff policy. 'We believe — and we're right — that we are in an emergency,' Vance said last week in an interview with Newsmax. 'You have seen foreign governments, sometimes our adversaries, threaten the American people with the loss of critical supplies,' Vance said. 'I'm not talking about toys, plastic toys. I'm talking about pharmaceutical ingredients. I'm talking about the critical pieces of the manufacturing supply chain.' Vance continued, 'These governments are threatening to cut us off from that stuff, that is by definition, a national emergency.' Republican and Democratic lawmakers have tried to rein in a president's emergency powers. Two years ago, a bipartisan group of lawmakers in the House and Senate introduced legislation that would have ended a presidentially-declared emergency after 30 days unless Congress votes to keep it in place. It failed to advance. Similar legislation hasn't been introduced since Trump's return to office. Right now, it effectively works in the reverse, with Congress required to vote to end an emergency. 'He has proved to be so lawless and reckless in so many ways. Congress has a responsibility to make sure there's oversight and safeguards,' said Sen. Richard Blumenthal, D-Conn., who cosponsored an emergency powers reform bill in the previous session of Congress. He argued that, historically, leaders relying on emergency declarations has been a 'path toward autocracy and suppression.'
