Maine's public defense agency files a plan to solve constitutional crisis
Superior Court Justice Michaela Murphy had given the Maine Commission on Public Defense Services one month to share how they can increase representation after finding the state agency was violating Mainers' Sixth Amendment rights to representation as part of a lawsuit filed by the American Civil Liberties Union of Maine. (The ACLU said it's still waiting to see if Murphy will find the entire state liable.)
Murphy suggested last month that the state's new public defenders, particularly those who are more experienced, should take on more cases. She also criticized the commission for relying on a messy spreadsheet compiled by court clerks, instead of tracking criminal defendants themselves.
As of Monday, there were approximately 400 pre-trial criminal defendants who needed an attorney, according to a list maintained by the courts. Roughly 140 had been on the list for more than two months. And at least 70 were in jail, with about 25 having been in custody for more than two weeks.
The commission agreed Thursday to reassign some administrative staff to focus on tracking and finding counsel for the state's unrepresented cases. As a result, some training will be placed on hold and staff will "adjust the level of scrutiny given to vouchers" submitted by attorneys 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. (Some observers, including Gov. Janet Mills, have criticized the commission's caseload limits and eligibility requirements. The commission has previously disputed these are to blame.)
Much of the plan included only short-term commitments as the commission hopes to get more funding so it can increase its public defense presence throughout Maine, a state that relied exclusively on private, court-appointed lawyers until 2022.
Today, four of the state's five criminal public defense offices are less than a year old and still ramping up. Several counties in the Midcoast and southern Maine still don't have public defenders.
RELEASE, DIMISSAL DEADLINES
The commission wrote in court records that the number of defendants who need attorneys continues to drop, demonstrating their attention to the crisis.
On March 7, when Murphy issued her last order, there were 85 defendants who were in jail and needed lawyers. A month later, only six of those defendants are still in jail without an attorney, the commission stated. The reduction "resulted from the continuing efforts" of their staff and public defenders to representing their clients, the commission wrote.
The filing also contains several exhibits, including letters to prosecutors requesting they reevaluate some of the cases that have been languishing the longest and the commission's budget requests.
The plan submitted Thursday was part of a larger order issued by Murphy last month. It includes an April 7 hearing, for the judge to lay out her process for releasing anyone from jail who has been unrepresented for at least 14 days, unless the state can find them an attorney within the following week. She said she would drop charges against anyone who has waited more than 60 days for a lawyer (charges could be re-filed when an attorney is available.)
The potential release of those defendants has frightened victims' rights advocates, lawmakers and the governor.
Civil rights advocates who have been following Maine's crisis from other states say Murphy's deadlines aren't unusual, and similar timelines have been ordered in Oregon and Missouri.
"It's not just about funding lawyers to help guilty people get free — it's about funding our system so that the system works in as fair and accurate a way as possible. And that benefits all of us," said Daniel Medwed, a former public defender and professor at Northeastern University's School of Law.
EMERGENCY LEGISLATION
Meanwhile, lawmakers agreed Thursday afternoon to advance emergency legislation attempting to address the crisis.
LD 1101 would allow judges to appoint and pay an attorney who hasn't been approved by the commission — but only if no approved lawyers are available.
Lawmakers made several changes to the bill Thursday to address concerns the commission's director raised last month, questioning how these lawyers could be held accountable or paid accurately. The commission's Director Jim Billings said it would be premature for him to comment on the bill before the rest of the Legislature votes on it.
The bill now comes with a Feb. 1, 2026, sunset, and also clarifies that these non-rostered lawyers still have to have three years of related experience. Judges also can't appoint and pay anyone who has previously been disqualified by the commission and these attorneys have to use the same reimbursement voucher process as everyone else doing public defense.
The same bill includes more than $3 million for the commission to hire five new public defenders and additional support staff.
Despite the bill's bipartisan support — it was introduced by Democrats and endorsed by Senate Republican Leader Trey Stewart — the governor has not weighed in on the latest version and has previously opposed the commission's requests for more funding until the organization rolls back its eligibility requirements and caseload limits.
The governor's office didn't not respond to an email, seeking her reaction to the amended version of the bill.
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