04-04-2025
State commission, lawmakers declare ‘all hands on deck' effort to address indigent defense crisis
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Maine lawmakers and the state's public defense commission are racing to confront a growing constitutional crisis as almost 90 indigent defendants remain jailed without legal representation. With a court-ordered deadline looming, officials are backing a multi-pronged plan to recruit more attorneys and reduce the backlog of unrepresented clients.
After years of Maine failing to provide timely counsel to defendants who can't afford an attorney, the Kennebec County Superior Court ruled last month that the state must create a plan by April 3 to end what it described as a constitutional crisis. It also agreed to a request from the American Civil Liberties Union of Maine to start releasing defendants who have been waiting for counsel from incarceration if the state fails to provide representation.
The ACLU 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, among other provisions.
With that deadline looming, the Maine Commission on Public Defense Services released its proposal Thursday, which includes immediate remedies such as better coordination with courts to keep an updated list of all defendants in need of an attorney, increased incentives for private and public attorneys to take on cases, and an appeal to district attorneys and the Maine Attorney General's office to reconsider pursuing lower-level offenses, such as charges for drug possession or violating conditions of release (which make up the vast majority of charges).
As part of its long-term solutions, the commission also referenced a bill (LD 1101) passed by the Maine Legislature's Judiciary Committee this week that would add five new positions within the public defenders offices..
Zach Heiden from the ACLU said at the public hearing on the bill that while it was critical in bolstering the state's public defenders offices, it was not enough.
On Monday, the Kennebec County Superior Court will start setting dates to determine if people should be released, and what the conditions of release should be (for example, an ankle monitor, limits to travel, drug testing, etc.)
Individuals who have been incarcerated for more than 14 days without counsel are eligible and if the judge decides a person should be released, the state will get another seven days to find an attorney before that actually happens, so a person could technically be incarcerated for a minimum of 21 days before release, according to the ACLU.
During the March 19 public hearing, Judiciary Committee co-chair Sen. Anne Carney (D-Cumberland), who introduced the emergency legislation, described the need to urgently address the indigent defense crisis in Maine as an 'all hands on deck situation.'
'I think there are two really big things at stake. One is the Sixth Amendment rights of these people who have been incarcerated, some of them for a very long time, without representation' she said.
'And the other thing at stake is really the rights of Mainers to live in a safe community. And in some instances, there are people who could be released from incarceration who would present a public safety threat.'
As an emergency measure, the bill will need the support of two-thirds of the Legislature to pass and immediately take effect. In the amended version that the committee unanimously supported, it would cost the state $3,341,394 over three years — $254,860 in FY2024-25, $1,533,828 in FY2025-26 and $1,552,706 in FY2026-27.
'We have an actual crisis on our hands. And this is a very important piece of legislation that plugs a lot of those holes, maybe not perfectly …but we'll address a very important situation,' said Rep. Rachel Henderson (R- Rumford).
'This is not something that's possible without true bipartisan efforts and support.'
The number of adult criminal defendants waiting for state-appointed counsel exceeded 1,000 last December. According to the public defense commission, it fell 487 as of April 2 due to a combination of public defender offices and private attorneys taking cases off the list.
In response to the court's requirements, the commission is proposing a strategy to reduce the number of unrepresented defendants and improve access to indigent legal services statewide. Some short-term solutions the state proposed includes direct outreach to recruit more qualified private attorneys, expanding law student internships and externships within public defenders' offices, and developing a real-time shared system with court clerks to streamline and coordinate case assignments.
To encourage attorneys to return to court rosters, the commission is proposing a five-case daily cap 'since many attorneys state as a reason for not going on rosters for the fear that they will be assigned 20, 30 or more cases in a few days,' according to the document. The commission is also proposing reinstating geographic limits to prevent attorneys from taking on cases in multiple counties and having to travel.
On March 25, Jim Billings, executive director of the commission, sent a letter to all district attorneys' offices as well as the Maine Attorney General, urging them to reexamine charging decisions for lower-level offenses — such as drug possession, driving offenses, and violations of conditions of release.
The letter asked prosecutors to evaluate each of their cases to ensure they can be proven beyond a reasonable doubt, and in cases where there are challenges with proof, missing witnesses, or other issues, to consider dismissing those.
The letter noted that nearly 90 defendants remain jailed without legal representation.
'I do not make the suggestions in this letter lightly. No one wants us to be in this situation,' Billings wrote. 'This is a constitutional crisis, but if we work together where possible to prioritize resources and make tough decisions, we can improve the way the criminal justice system is currently functioning in Maine.'
Another proposal being considered by the Legislature this session, LD 179, would help address the issue by removing from the bail code a charge if someone violates their condition of release. Maine is one of only six states that charges people with a separate crime for violating their conditions of release. In 2024 alone, there were over 5,400 such charges filed in Maine courts, according to Frayla Tarpinian, a former prosecutor who oversees Maine's first brick-and-mortar public defender office. To compare, the second most common type of charge was 662 cases of drug possession, she said.
Maine's current law is an example of excessive punishment, according to Abbe Smith, a Georgetown University law professor and director of the Criminal Defense and Prisoner Advocacy Clinic.
The ACLU did not comment on the commission's plan, but will respond during a Monday hearing.
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