Maine is the only state in the country that relies completely on hiring private attorneys to represent defendants without the ability to pay legal costs. With a new report warning that the state is failing to protect the legal rights of its poorest residents, pressure is now mounting on the legislature to adopt significant changes.
In other states and cities, representation of low-income defendants is handled by a public defender office, which Maine lacks entirely. That absence means hired attorneys may have a financial incentive to overbill the state and spend less time on their cases, which can result in poor defendants accepting harsher guilty pleas or paying higher court penalties, according to a report issued Thursday to state lawmakers by the Sixth Amendment Center in Boston.
The report notes that the absence of public defenders may mean the state is failing to provide indigent defendants with the effective legal representation they are guaranteed under the Sixth Amendment to the Constitution.
“The appointed lawyer needs to be more than merely a warm body with a bar card. The attorney must also be effective,” reads the report submitted to the legislature’s Judiciary Committee, which further warns that the Maine Commission on Indigent Legal Services (MCILS), established by the legislature in 2009 to oversee these private attorneys, “cannot guarantee constitutionally effective representation of defendants in each and every case.”
The Sixth Amendment Center found that poor defendants, without ever speaking to a lawyer, routinely negotiate plea agreements directly with prosecutors, even after the U.S. Supreme Court established that defendants must be represented for any case involving even the remotest possibility of jail time.
This has some members of the Judiciary Committee worried that they are leaving the state exposed to a class-action lawsuit.
Tina Nadeau, director of the Maine Association of Criminal Defense Lawyers, told Beacon that the report’s findings come as no surprise to her and likely to anyone who has been entangled in the state’s criminal justice system.
“The system has not fulfilled Maine’s Constitutional obligations to provide effective counsel for indigent defendants — we haven’t even come close,” she said.
Report ‘confirms what a lot of us have known’
For poor people who come into contact with Maine’s criminal justice system, the absence of a state public defender office can greatly affect their lives.
It starts before the judge takes the bench, when indigent defendants are informed by a video about their right to counsel. MCILS has no way of ensuring the video is watched, or knowing if the rights it explains are understood.
Defendants can go days or sometimes weeks in the system without being represented by a lawyer, the center reported. While MCILS requires Maine courts have a “lawyer of the day” on hand when defendants first appear in court, that lawyer is not often appointed to represent anyone.
“The lawyer of the day system primarily serves the need of the court dockets, while resulting in a lack of continuous representation to the detriment of defendants,” David Carroll, one of the report’s authors, told committee members. “There’s often a critical gap in representation.”
When defendants do talk to the daily appointed attorney, those single-day interactions are often very short, and the system sets it up that way, he explained. The hired attorneys are paid a fixed amount. They earn the same regardless of how many cases they handle or how many hours they put into each case. So even if a case is winnable, there is still an incentive to resolve it quickly with a plea.
Last year, the average time spent by hired lawyers on each indigent defendant’s case was 9.25 hours. In Somerset County, the average was just 2.99 hours. One sheriff told Carroll’s research team that about 25 percent of the hired attorneys in his county do not visit their clients in jail. The lawyer who billed the most hours in 2017 did not bill a single hour for a jail visit.
With this limited access, prosecutors, especially in the busier courts in southern Maine, often talk to defendants to negotiate guilty pleas before they even have had a chance to speak with a defense attorney.
“We are firm believers that broken indigent defense systems contribute to over-incarceration,” Carroll told Beacon. “Because if you’re not putting up a zealous defense, you’re basically operating an assembly line with poor people just being put in jail.”
Criminal justice reformers also believe the state’s defense service system is culpable, in part, in glutting Maine’s carceral system with low-income people, a disproportionate number of them people of color.
“[The report] confirms what a lot of us have known,” said state Rep. Rachel Talbot Ross (D-Portland). “Within the racial and ethnic communities of this state, we’ve known this for generations.”
Indigent defense just one side of the coin
The Sixth Amendment Center’s report further paints a picture of MCILS overseeing a loose association of private defense attorneys who have insufficient training and qualifications and who frequently overbill the state, which has a severely limited capacity to monitor its own lawyer pool.
“We are not auditors. We’re not forensic accountants. We are pointing out that you have no checks and balances to figure out what’s going on here,” Carroll told lawmakers.
Carroll and his team are recommending that lawmakers fund MCILS sufficiently to open a statewide appellate defender office and a pilot public defender office in Cumberland County, which hears a large share of the state’s court cases.
The team also recommends that the state completely ban prosecutors from talking to poor defendants before they have the chance to speak to a defense attorney. This would help mitigate the state’s exposure to a potential lawsuit.
However, the report’s focus on the systemic failures of the state’s private legal defense system is ignoring the other side of the coin, Carroll conceded — the fact that prosecutors dictate who goes to jail, and for how long.
“If the state looks to increase diversion options, or re-classify certain lower-level crimes to violations, you could shrink the entire criminal justice system altogether,” he said.
Criminal justice reformers agree that if lawmakers want to address the structural drivers that over incarcerate low-income people in Maine, then they must address prosecutions as well.
“The real drivers, as far as cost and volume, to our criminal legal system are the arrest decisions of law enforcement and the unchecked charging decisions, bail recommendations, and plea offers of prosecutors,” Nadeau said. “Unless we start diverting people away from the criminal legal system — instead of trapping them in it — the more we will be required to invest in indigent defense.”
“Meaningful reform must include decriminalization of many crimes, the removal of mandatory minimums, moving towards lower bail amounts or personal recognizance bail, and putting in place in the community the services, supports, and treatment needed by people in order to address the root causes of criminality — poverty, addiction, illness, homelessness, hunger — outside of the system,” said Nadeau.
(Photo: Cumberland County Jail’s intake department | official photo)