02-05-2025
Maine public defense commission wants to improve confidentiality in jail communications
The main courtroom of the old Kennebec County Courthouse, now part of the Capital Judicial Center in Augusta. (Jim Neuger/ Maine Morning Star)
The Maine Commission on Public Defense Services is asking the Legislature to consider a proposal to improve confidentiality between attorneys and incarcerated people communicating in jails.
LD 1825, would prohibit a jail or third-party contractor who provides communication services from intercepting communication between a person who is incarcerated and an attorney or an employee of a law office. It would also bar them from charging a fee for those communications.
Current law requires the commission to send a list of names and contact information for attorneys who provide legal services to incarcerated people to all sheriff's offices on a weekly basis. The legislation would also require each jail to send electronic communications to each attorney on that list certifying that communications will not be intercepted or come with a fee.
While the Department of Corrections already provides a certain amount of free phone calls to people being held in jails, officials opposed this bill, saying that allowing more would be cost prohibitive. Deputy Commissioner Anthony Cantillo also raised concerns about the electronic communication stipulation and whether jails would be able to keep track of who is an employee at a law office since only attorneys are included on that weekly list.
Maine is in the midst of what some have described a 'constitutional crisis' regarding the state's ability to provide timely counsel to defendants who can't afford an attorney. The American Civil Liberties Union of Maine has argued since 2022 that the state is in violation of the Sixth Amendment, which declares the right to a speedy and public trial and legal counsel.
Earlier this year, the Kennebec County Superior Court agreed to start releasing defendants who have been waiting for counsel from incarceration if the state fails to provide representation. In response, the commission put forth a proposal with short- and long-term solutions to address the issue.
LD 1825 was one of four bills the commission brought to the Legislature's Judiciary Committee born out of an annual report that was submitted to the committee earlier this year. Because of this, they were not sponsored by individual legislators as usual.
These proposals come after the Legislature passed a bill last month to bolster the state's strained public defense system by creating new staff positions and increasing funding for private counsel representing defendants who can't afford their own attorneys. It subsequently became law without Gov. Janet Mills endorsing it with her signature.
The commission also saw push back from the judicial branch on another proposal, LD 1796.
That bill seeks to clarify that the courts — and not the commission — are responsible for providing and paying for counsel to a juvenile who files a petition for emancipation and those who are entitled to publicly funded counsel in probate cases. It similarly seeks to clarify that courts are responsible for providing the services of a guardian ad litem appointed at public expense.
Julie Finn, a representative for the judicial branch, said the proposed changes would transfer responsibilities onto the courts that are already underresourced. If the judicial branch is asked to take on those responsibilities and payments, Finn said additional dollars would need to follow. She gave a rough cost estimate of $350,000 to $400,000.
Carney asked Finn and the public defense commission's Executive Director Jim Billings to ponder creative solutions to address the disagreement over who should have that responsibility because she thinks 'the money, ultimately, will be a wash.'
Billings said he doesn't have strong feelings on whether this falls on the commission or the judicial branch, but he wants to avoid future scenarios where the commission is paying for attorneys on both sides of a guardianship case.
Another bill sought to clarify when a criminal defendant is entitled to counsel at state expense. Billings said the commission is asking the committee to consider LD 1802 because of previous situations that felt incongruent with due process and fairness.
Currently, prosecutors indicate if they will be seeking jail time in cases where that would be possible. If they indicate they won't be seeking jail time, that person does not have a right to indigent defense services.
However, Billings said there are scenarios where a defendant has already spent a night in jail but the prosecutor isn't planning to pursue further jail time, so they aren't deemed eligible. LD 1802 would change the policy so that person would be entitled to counsel.
Billings said other states actually use a simpler system that entitles a person to counsel if the crime they are charged with authorizes jail as a sentence, rather than relying on the intentions of the prosecutor. When asked why the commission isn't trying to adopt that approach, Billings said he's interested in using incremental change and compromise to further justice in the state.
'We are moving in baby steps over at PDS,' he told the committee.
The final bill brought by the commission seeks technical amendments to the definitions of 'employed counsel' and 'public defender.' LD 1801 would also make training materials used by the commission confidential in response to concerns that some presenters have raised that their materials could be subject to Freedom of Access Act laws.
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